Complainant

Respondent

Anonymised Parties

An Employee (Cabin Crew)

An Airline

Representatives

  Self-represented

Elaine Mettler

Employment Counsel

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00052394-001

24/08/2022

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

CA-00052394-002

24/08/2022

On 24 August 2022, the Complainant, who works as cabin crew for the Respondent submitted a claim of alleged disability discrimination under the Employment Equality Acts. The Complainant also alleges that the Respondent failed to provide her with reasonable accommodation to take account of her disability in accordance with Section 16(3) of the Employment Equality Acts 1998 – 2008.

The Complainant alleges that she was discriminated against on the grounds of disability due to the Respondent’s failure to provide an extension to her career break request based on her disability.

The Complainant asserts that had reasonable accommodation been provided by way of granting an extension to her career break to her by the Respondent she states she would have been in a better position to return to the workplace.

This complaint also involves a claim by the Complainant under Section 6 of the Payment of Wages Act, 1991.

The Respondent, represented by Elaine Mettler Employment Counsel rejected this contention for both complaints and furnished a comprehensive written submission in support of that position.

CA-00052394-002

The Complainant submits that she was subjected to discriminatory treatment as a result of her disability and also that the Respondent failed to provide her with reasonable accommodation to take account of her disability in accordance with Section 16(3) of the Employment Equality Acts 1998 – 2008.

The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint form, but I was provided with supplemental documentary evidence – such as emails etc., in support of the Complainant’s claim.

In this regard, the evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that she was discriminated against on the grounds of her disability in regard to her anxiety and depression.

The Complainant asserts that had reasonable accommodation been provided to her by her Respondent she states that she would have been in a better position to return to the workplace.

The Complainant told the hearing that she is a permanent employee of the Respondent and has been out of work on sick leave since August 2019.

This sick leave the Complainant explained was exhausted in late 2020 and she was told that her only option available to her if she wanted to keep her job was to take the 'Extended career break' of 1.5 years which was being offered to all cabin crew at that time due to Covid 19 and the effect it had on the aviation industry.

The Complainant further told the hearing that she took up the offer of the career break and it ended on 21 April 2022.

In this regard, the Complainant noted that as she has not recovered sufficiently to return to her job of flying according to her GP, she requested an extension to her career break.

The Complainant further noted that she was told by an employee of the Respondent dealing with this area that Career break extensions were being given to cabin crew (of up to two years) and she did not see any problem with her being granted an extension, given her case and disability of anxiety and depression.

The Complaint advised the hearing on this point further that she was first promised the extension to her career break by management via her union representative and chairperson of the cabin crew committee who were not in attendance at the hearing-

The Complainant stated that she received communication by way of text message which informed her that she had secured her extension.

In addition, however the Complainant added that she was then told by management in an official capacity that she did not have the extension and that it was 'hearsay'.

The Complainant noted on this point at the hearing that she believed she has been singled out and that she was certain that other colleagues were granted extensions and for reasons far less serious than hers.

On these grounds the Complainant alleges that failure by the Respondent to grant her an extension to her career break, amounts to unfair treatment on the grounds of Disability.

The Complainant also referred to her submission that because of her diagnosis, the Respondent are attempting to find grounds to terminate her.

The Complainant explained to the hearing that she believes they are using Medmark and its owner/director to help them to do this.

The Complainant explained further on this point at the hearing that she believes this is the case based on the Director of Medmarks treatment and interaction with her which she found to be quite unprofessional.

In this regard, the Complainant further submits that the Respondent has lacked any element of the duty of care they owe to her as her employer and furthermore any compassion for the debilitating illness she has and which she stated at the hearing her employer has not afforded to her adequate time to recover from.

The Complainant on this point advised the hearing that they are using her illness/disability as a weapon with which to get rid of her or force her to resign due to the untold stress they have put her under since the matter began.

The Complainant submits that she should have been afforded the same opportunity as her fellow cabin crew members who were granted extensions to their career breaks of 1-2 years.

The Complainant advised the hearing that while she notes the Respondent deny that they had granted extensions to her colleagues in a similar circumstance as her, she informed the hearing that she knew for certain that other colleagues were granted an extension but would prefer not to state their names.

The Complaint explained to the hearing that she believes that her simple request for an extension and further time to recover before going back to what she believes is very demanding and tiring job could easily have been granted if the company wanted to.

On that point, the Complainant advised the hearing that she believes the Respondent had a particular agenda towards her and they wanted to make her life as difficult as possible in order to push her out of the company or get Medmark's to help them build a case for her dismissal on medical grounds, if she did not resign herself.

By way of example of this the Complainant referred to points made in her submission that she believes she was coerced into attending a medical consultation with the head Doctor from Medmark on the premise that she would be granted an extension to her career break if the Doctor deemed it beneficial.

The Complainant told the hearing that she was informed by a staff member in the Respondents Human Resource department there might be 'another way around' giving her an extension to her career break.

The Complainant further stated that the employee informed her that if she attended a consultation with Medmark's owner and director, that should the Doctor deem it to be of benefit to her and her recovery that she would be granted the extension to her career break.

The Complainant submitted that she felt that this was very unfair and unnecessary but also felt she had no other choice to attend the consultation.

Again, the Complainant submitted that she felt coerced into attending the meeting but noted that she attended it (remotely) nevertheless.

The Complainant advised the hearing that she found the experience with the Doctor for Medmark quite inappropriate, and she felt it was clear he was trying to provoke a reaction in her.

The Complainant further advised the hearing that she felt very vulnerable in this situation, and that her condition was being taken advantage of by the company and the doctor of Medmark.

The Complainant also submitted that she felt that this was done in order to facilitate an outcome which the company was seeking which was to dismiss her.

In addition, the Complainant submitted that she found the consultation to be highly invasive, unprofessional, with some very inappropriate questions being put to her by the Doctor.

The Complainant added that she believes that the purpose of this 'consultation' was not to benefit and care for her and grant her the extension on medical grounds, as the company pretended it was, but for their own benefit and to build a case to terminate her contract due to her inability to perform her duties as cabin crew with the help of the company doctor- a paid employee of the Respondent.

It is in this context that the Complainant submitted that it is obvious in her view that the Doctors primary goal was to please the Respondent and provide them with the outcome she believes that they wanted instead of conducting the consultation professionally and ethically as a medical doctor.

On completion of the consultation, the Complainant stated she was left feeling very low and she believed at the very least, she would hear from the Respondent of the outcome within two weeks of the consultation with Medmark, as promised but instead the Complainant submitted that she was left to wait for nine weeks, which escalated her feelings of stress and worry about her situation.

The Complainant added that she became aware of the outcome after receiving an email from Management in Human Resources requesting that she attend a meeting in remote capacity with her and another member of Management to discuss her medical report from Medmark.

The Complainant further added that she believed this was also highly inappropriate as the consultation with Medmark was private and the Respondent in her view should have had sufficient information in the Medmark report to make their decision.

The Complainant again said she was coerced into attending this meeting which she believed was unnecessarily and over the course of the duration of the meeting she submitted she was subject to an invasive and unnecessary line of questioning.

The Complainant submitted that she was informed in this meeting that they would under no circumstances be granting the extension to her career break. The Complainant added that she believes that this decision was supported by the report carried out by the doctor on behalf of Medmark who did not in any way support her case and it was misleading, unfair, and pro employer.

As a result of the report’s findings and the decision of the Respondent not to grant the career extension, she was informed by the Respondent that she would be placed on LTS (Long term sick leave) until the end of August 2022  and then they would at that point, review her case again and this would require her to have another consultation with the Medmark Doctor that carried out her previous consultations to determine whether she is am fit to return to work and resume her duties.

In regard to the requirement to be reassessed by the same Doctor, the Complainant submitted that she specifically informed the Respondent in this meeting that she did not want to consult with that Doctor again after how unprofessional she felt that the Doctor was during her consultation with her on 11 February 2022.

The Complainant explained to the hearing that she flagged her concerns in this regard to the Respondent management in her online remote meeting with them on 27 May 2022, that she did not ever again want to have to have another consultation with the Doctor for the reasons aforementioned.

The Complainant stated that to her shock, on informing the Respondent of her request they informed her that they could not promise this.

Again, the Complainant stated at the hearing that she believed that the Doctor in question of Medmark is the company's 'ticket' to getting the result that they want (getting rid of her) one way or another.

In the Complainants closing summary, she submitted that the discrimination she believes she has suffered at the hands of Respondent due to management of the Respondent not granting her an extension as requested is discriminatory on the grounds of her disability.

The Complainant further submits that she believes that the Respondent is using her illness/ disability to get rid of her by putting her under unnecessary stress, worry and pressure while coercing her into meetings with them and also the company doctor, which she believes is obvious and akin to an interrogation and the mission to dismiss her in a 'tidy' and 'legal' way.

In addition, the Complainant submitted that she found the Respondent overall attitude, behaviour, and treatment over the course of her engagement on this matter to be highly discriminatory and quite unbelievable, particularly taking into account that she has been a loyal employee to them since 2014.

The Complainant stated that prior to this incident she loved her job as cabin crew and always did her best to be compassionate and kind to passengers and fellow crew members.

The Complainant submitted that it is abhorrent that they would use her illness and disability of anxiety and depression against her instead of supporting her and that while they may try to appeal to be coming across that they care and are supporting her she believes this not genuine.

The Complainant in her closing remarks also stated that the manner in which they treated her and discriminated against her makes them a company and environment which she would not be comfortable working for now or in the future, even after her recovery.

In further closing remarks she further states as a loyal employee who has suffered so much stress, and which her recovery from anxiety and depression and now more recent to a further illness she has been left which she attributes largely developing due to the untold stress the Respondent has put her through has resulted in her deciding that that she should not walk away from her job and allow them to achieve their goal of making her resign from her position empty handed.

CA-00052394-001.

In relation to the complaint also submitted in regard to Section 6 of the Payment of Wages Act, 1991 the Complainant alleges that the Respondent has failed to pay her the amount of wages that she is properly due, and this is contrary to the Payment of Wages Act 1991.

The Complainant believes that after her career break, she should have accrued fresh entitlements to sick leave and holiday pay after her career break ending and that she should be entitled to be paid (at least partially) for a certain length of time.

The Complainant submits that she was paid for three consecutive pay periods before it suddenly stopped.

On this note, the Complainant states that her payslips look very strange, and she is concerned she is not getting the pay she is entitled too.

The Complainant explains in this regard that she feels very abused by the Respondent and despite having knowledge of her illness, anxiety, and depression, she believes the Respondent has used this as a weapon against her.

In her closing remark on this point, she suspects that they are certainly not fulfilling their duty to her as an employee, in terms of her receiving her correct rate of pay.

CA-00052394-002.

The Respondent rejected the claim and furnished a comprehensive written submission on the date of the hearing which the Respondents representative made reference to while providing an overview and timeline of the actions it took relating to the alleged breach.

The Respondent rejects that there has been Discrimination and submits that it is always willing to accommodate the Complainant though could not acquiesce to the demands being made by the Complainant in this regard.

The Respondent submits that the Complainant is employed as a cabin crew member in its Dublin base since 24 March 2014 and has been absent from work on certified sick leave since the 16 August 2019 date to November 2020, during which time she was regularly reviewed by the Respondents occupational health advisors, Medmark.

The Respondent further submits that its sick leave policy provides for paid sick leave for a specified duration for employees who are medically certified as being unfit for their duties. This the Respondent explains is based on the Complainants length of service, and in this regard the Complainant was entitled to receive a maximum level of sick pay of six months full pay and six months 75% pay in a four-year period. Employees who are long-term absent (beyond 52 weeks) are entitled to submit an application to the Respondents Income Protection Scheme.

This the Respondent explains is an additional employment benefit in the form of an Income Protection Scheme for employees who are long-term absent from work and/or who may be unable to return to their role because of medical incapacity and who have been absent for more than 52 weeks.

The Respondent further explains that the scheme provides a benefit for those whose are deemed eligible for the scheme of 50% of basic salary less social welfare payable, with the payment made via the Employers payroll.

In this regard, the Respondent notes that the Complainant was formally advised in writing in February 2020 that she had now moved onto ¾ sick pay and was further advised on 28 July 2020 that she had exhausted her sick pay entitlements under the Company Sick Pay Scheme in June 2020.

The Respondent advised the hearing that the Complainant in August 2020 applied for the income protection scheme with the employer’s scheme provider as she was approaching 52 weeks of absence. As part of the application process for Income Protection, the Complainant was required to attend an appointment with an Independent Medical Examiner (IME), which took place on the 21 September 2020.

The Respondent referred to correspondence attached in its submission from the employers Income Protection provider letter dated 15 October 2020, which was sent on 22 October 2020 of their decision regarding her Income Protection claim, which confirmed the following: “It is our opinion based on the medical evidence on file that she ‘’is not currently totally disabled from following her normal occupation as required by the policy and is fit to return to work.” Her claim was not admitted by the Employers Income Protection provider as a result.

In response to this, the Respondent submitted that the Complainant then applied for and was granted a career break from employment with the Respondent under an Enhanced Career Break Leave programme which was open to cabin crew at the relevant time of application.

The terms of the Enhanced Career Break Leave the Respondent explained were set out in a written agreement provided to the Complainant before her leave period began.

In line with the agreement she had signed, the Respondent advised the hearing that the Complainants career break commenced on 16 November 2020, and she was due to return to work at the end of her career break on the agreed return date – 18 April 2022. The Respondents represented highlighted as set out in its submission that the Complainants career break agreement provided that there would be contact with the CCM ten weeks before the proposed return date to confirm the CCM was returning to work as planned.

In this regard, the Respondent explained that on their planned return dates, cabin crew were required to undertake regulatory training necessary before they could return to flying duties because of the duration of their absence. As part of the planned return to work process, the Complainant was returned to the payroll system effective from the date after the Complainant career break leave period was expected to end.

On this point, the Complainant contacted management in late January 2022 with a formal request to extend her career break leave. The Respondent advised the hearing that the Complainant was informed that no extensions would be granted, and that the Respondent was planning a full return to normal operations for summer 2022.

The Complainant was subsequently then requested to attend a medical consultation with Medmark in February 2022 in advance of her expected return to work.

The Respondent informed the hearing that as part of this medical review, they were advised that the Complainant had made the personal decision to relocate to Spain in the summer of 2021 and was working there on a part-time basis since January 2022.

The Respondent further informed the hearing that the medical report from Medmark indicated that the Complainant wished to remain in Spain until the end of the year and made referenced to the fact that she was still looking for an extension of her career break arrangements.

The Respondent also submitted that Medmark also informed them that whilst they viewed the Complainant as fit to work as evidenced by her part-time job in Spain, they viewed her as unlikely to be able to return to flying duties in Ireland and to meet the requirements of the regulatory medical for her role given her treatment history and personal views of her fitness to work.

It is in this context the Respondent informed the hearing that the report concluded that the Complainant should be deemed unfit at the end of her career break leave and did not give an indicative timeline for her return to work.

On this note. as the Complainant was unable to return to flying duties on the cessation of her career break, she was placed on sick leave in April 2022.

Following a meeting with the Complainant, her union representative and management and attendance management personnel for the Respondent which took place on 24 May 2022 to discuss her continuing absence from work and also the previous Medmark report the Respondent noted that the Complainant informed them that she continued to reside and work in Spain but she was hopeful she could return to work for the Respondent at some point.

At the Complainants request the Respondent noted that she was accommodated with further time to avail of certain treatments and a review appointment via Zoom with Medmark was put in place for August 2022.

The Respondent informed the hearing that the Complainant maintained she was unable to attend and sought to have no further contact or medical assessments until after September 2022. The Respondent advised the hearing on this point that further appointments which were arranged for the Complainant to attend with Medmark personnel in October and early December 2022 were not attended by her.

On this point the Respondent also advised the hearing with reference to its submission that the Complainant has not returned to work following her career break. The Respondent submits that the Complainant maintained throughout this period that she is medically unable to do so. 

The Respondent further submits on this point that on foot of the Complainant been requested to attend further occupational health appointments with Medmark as per her contractual obligation, the Complainant failed to attend the appointments that have been scheduled for her with several Medmark doctors (both in person and remote via zoom).

The Respondent further advised the hearing that it is now more than 15 months since the Complainant has attended a company occupational doctor for any form of assessment as to her medical fitness and continuing absence from work.

In addition, the Respondent submitted that they were informed on 22 December 2022 by the Complainant that she has had further health challenges and had been hospitalised as a result of a new medical illness and related surgery. The Respondent submits that all appropriate supports are being extended to the Complainant to support her during this time.

In this regard, the Respondent submitted that as is the case with any employee absence with an illness, this still require them and in this case the Complainant to engage with the Company’s occupational health advisors so that the Respondent can get a full understanding of the Complainants current medical situation and the prognosis for her return to work.

It is in this context that the Respondent submits that to date, the Complainant has not made herself available for any medical appointments and the most recent of which was scheduled for a remote consultation via Zoom with Medmark on 5 April 2023. She did not attend.

In terms of the complaint made that the Complainant has been treated less favourably on grounds of disability by the Respondent contrary to Employment Equality Acts, the Respondent submits that this claim is wholly rejected.

The Respondent submits that the Complainant must first establish a prima facie case of treatment contrary to the Employment Equality Acts on the ground of disability.

The cognisable period for this complaint is the six months preceding the date the claim was notified to the WRC, which was 24 August 2022, hence the cognisable period is 25 February 2022 – 24 August 2022 noting the identified date of 27 May 2022 above.

The Respondent pointed out at the hearing that the complaint of discrimination alleged by the Complainant appears to relate solely to her personal request to continue her extended career break beyond the agreed return date, after the agreement which she had signed with her employer had concluded.

In applying for the extended career break scheme in 2020, the Respondent stated that the Complainant was bound by the terms of the applicable scheme which envisaged an 18 month leave period and, in the case of the Complainant, a return date set for April 2022.

The Respondent pointed out that the career break terms which were offered to her and all applicants under the relevant Enhanced Career Break scheme at the time in 2020, during the initial months of the Covid19 pandemic, were accepted by her and recorded in a written agreement which she signed up to.

The Respondent advised the hearing that those were the terms under which the Complainant was permitted to leave her employment for a defined period and pursue alternative opportunities. These were the terms which were honoured in full by her employer to include the payment to her of two incentive payments over the course of the agreement in December 2020 and 2021. There was however a clear expectation that these arrangements would cease on an agreed date, which for the Complainant was the 18 April 2022.

It is in this context that the Respondent submitted that the Complainant had no entitlement to an extension of these arrangements and while an extension of the career break may have suited her personal circumstances as she was living and working in Spain, this was not something that Respondent was in a position to grant at the relevant time. It was acknowledged in the submission and at the hearing by the Respondent that this may have been disappointing for the Complainant but that, is not discrimination and/or a breach of equality legislation.

Although no details have been provided, The Respondent submitted at the hearing that it rejects the Complainant allegation that other colleagues were accommodated with extended career break arrangements, and as she has suggested she has been treated differently (and less favourably) to her colleagues for reasons that relate to her medical circumstances and disability at the prevailing time in May 2022.

While the Respondent submits that no details whatsoever have been provided to support this claim from the Complainant, the Respondent submitted at the hearing that they assumed that the Complainant may be referencing the career break/unpaid leave arrangements of other colleagues which may have a) commenced at different times to her own arrangements (resulting in different return dates) and/or b) have been applied for /granted under subsequent and different leave schemes which were introduced in 2021 after she had gone on her own career break leave.

By way of example, the Respondent stated in January 2021 as the impacts of Covid pandemic continued to significantly impact its operation, resulting in significant cabin crew resourcing surpluses and very low flying activity, a separate unpaid leave scheme was introduced in In-flight Services for cabin crew which enabled them to apply for a range of unpaid leave options such as: one month block of unpaid leave from March 2021, extended career break leave options up to summer 22 and 23 commencing in March 2021 and four month unpaid leave options (April-July; May to August; June to September) in 2021-2024. These were separate schemes open to cabin crew and subject to certain terms and conditions that were different to the 2020 Enhanced Career Break Scheme.

In adding context to its return-to-work procedures, the Respondent submitted that the safety critical role of cabin crew is subject to regulatory training, medical and licencing requirements. There is a dedicated operational planning department for cabin crew who are tasked with the logistical challenges of planned and actual rosters, training requirements, crew resourcing and allocation. It further submitted on this point that training dates must be carefully planned and scheduled especially for those returning from sick leave, statutory leave and unpaid leave arrangements such as extended career break leave.

The Respondent noted that those who availed of the 2020 Enhanced Career Break Leave Scheme including the Complainant were planned to return to work in fortnightly intervals commencing on 20 March 2022 – based on the available training dates in the Training Academy.

The date of return reflected the date of commencement of the career break so those who left earlier, returned earlier and so on. The staggered nature of return dates was purely reflective of the available training capacity at that time in circumstances where all those returning were required to complete mandatory regulatory training before being able to fly rostered duties.

To the extent that the Respondent explained in response to the Complainant reference to other colleagues who returned from career break at different times than her, this may be the case however it is also a fact the Respondent submitted that those colleagues will have commenced their personal leave arrangements at a later date than the Complainant and for the cohort who availed of leave under the 2021 Unpaid Leave arrangements, the range of unpaid leave options that were then available (and the conditions attached) were different.

The Respondent informed the hearing that the Complainant was advised that her perceptions that many of her colleagues had been granted extensions to career break leave were incorrect. The Respondent also informed the hearing that the Complainant was also advised that the Company was planning a return to normal operations and required as many staff as possible to return. In fact, at the relevant time, the Respondent was actively recruiting for hundreds of new cabin crew to join its base in Dublin.

Due to continuing ill-health however, the Respondent advised the hearing that the Complainant did not actually return to work in April 2022 and was instead recorded on sick leave.

In this context the Respondent submitted that it is not clear what purported discrimination took place in actual terms in May 2022. To date the Respondent also informed the hearing that Complainant has remained on sick leave, and as they understand continues to reside in Spain.

The relevance of the 27 May 2022 date as the last purported act of discrimination is not clear.

The meeting between the Complainant and the Respondent personnel to discuss her circumstances and the medical report from Medmark took place on 24 May 2022. At this meeting the Respondent submits that the Complainant was accompanied by her union representative at that meeting and no concerns were raised by her union representation further to that meeting.

The Respondent submits that a detailed summary of that meeting and subsequent interactions was sent to the Complainant in writing noting that further to a request she had made in May 2022, she was afforded a further three- month period until after August 2022 to avail of support and medical treatment.

The Respondent at this point submitted that there has been no less favourable treatment of the Complainant because she has a medical illness as has been suggested. To the contrary, the Respondent argues that the Complainant has been given considerable support both in terms of paid sick pay for 12 months, and she has been afforded enhanced career break leave.

The Respondent also included that the Complainant has been absent from work since August 2019 and her employment has continued notwithstanding that since she has not engaged with the Company’s occupational health advisors since her last consultation in February 2022 and she has failed to attend multiple appointments both remote and in person with several different doctors, a contractual obligation which she has as an employee of Respondent.

When the Complainant made a request for an extension of her career break leave arrangements, the Respondent submitted that they were unable to grant the request in circumstances where there was an agreed date of return in April 2022 and she was expected to return to the operational roster, once medically confirmed fit.

The Respondent also submitted that at this time it was actively recruiting cabin crew as our flying schedule had been fully restored post pandemic and so no further extensions of career break arrangements beyond agreed return dates could be facilitated for those who sought same.

The Respondent also advised the hearing that the Complainant did not cite medical grounds when she sought an extension of her enhanced career break leave in January 2022 and she did not seek the extension of career break as a reasonable accommodation of her as a person with a disability nor was this supported by any medical report or evidence.

The Respondent submitted that the Complainant appears to be referring to her own personal circumstances and also wish to remain in Spain at the relevant time as being the basis for her request.

The Respondent further submitted that in requiring the Complainant to return to work on the date agreed with her previously, and declining her request for an extension, the Respondent was applying the same terms as were applied to others with similar personal circumstances who were also seeking extensions.

When the Complainant  did not return to work and was placed on sick leave in April 2022, the Respondent informed the hearing that they made a number of accommodations at her request in terms of – granting her a further three month period to obtain support and further treatment; agreeing to her request not to make contact with her until after September 2022; continuing to schedule remote medical assessments for her with Medmark doctors notwithstanding her place of work was Dublin and her contractual obligation to attend an appointment with the company doctor on request. The Respondent also pointed out that further accommodations were made for the Complainant on learning of her more recent health difficulties such as the acceptance of monthly certificates from her (as opposed to the requirement to provide weekly certs in our policy)

Closing argument

In its closing remarks in relation to the Complainants complaint took under the Employment Equality Act, the Respondent submitted that the burden of proof rests with the Complainant to establish a prima facie case of discrimination on grounds of disability and it is submitted that she has not done so. The Respondent maintains that the Complainant has been supported through her periods of ill-health with generous company sick pay; regular occupational health assessments and engagement with management.

The Respondent also submitted in its closing remarks that the Complainants wish to extend her career break beyond the agreed 18-month period for personal reasons could not be facilitated by her employer due to the fact that she was required to observe the terms of the agreement she had signed with the Respondent and this requirement does not amount to her been treated less favourably.

The Respondent final comment at the hearing on this point was that there is no contractual right to an extended career break from employment. The Complainant has not identified any comparator who availed of the same enhanced career break scheme as herself in 2020 that was treated more favourably and/or further she has not demonstrated that the decision to decline her request for an extension to career break was in any way related to her medical situation at the relevant time (which it was not).

CA-00052394-001.

In relation to the Complainants complaint that an unlawful deduction of €1083.78 was made on 2 June 2022 contrary to the Payment of Wages Act, the Respondent submitted that the Complainant has been on sick leave since August 2019 to 16 November 2020 and also from 18 April 2022 to date.

The Respondent also submitted that the Complainant also had previous sick leave absence in 2018 and that she had exhausted her entitlements to company sick pay (six months full pay six months ¾ pay) at the time of going on career break leave.

The Respondent further submitted that the Complainant was expressly advised at the point of her application for the Enhanced Career Break Leave scheme by management that going on career break leave would preclude her from accruing any further sick leave entitlements whilst on unpaid career break leave.         

The Respondent informed the hearing that the Complainant was further informed that as she had exhausted her sick leave entitlements, at the time of going on career break leave, should she be declared unfit to fly in April 2022 on her return from career break, she would not receive any sick pay.  In noting this, the Respondent also referenced to documentation in its submission.

In addition, the Respondent also noted that the Complainant was on career break leave from 16 November 2020 to 18 April 2022 and that she has not returned to work since her career break leave and has not worked for the Respondent since August 2019.

It is in this context the Respondent submits that the Complainant has no entitlement to pay on this basis.

In relation to the payment the Complainant states she received after returning to sick leave after her career break ceased, the Respondent did acknowledge and accept at the hearing that the Complainant did receive the total sum of €2686.28, in the form of basic pay in her fortnightly payslips of 21 April 2022 (€553.72), 5 May (€1066.28) and the 19 May 2022 (€1066.28). These were overpayments of salary made in error to the Complainant.

The reason the Respondent submits for this overpayment is that its internal payroll system did not update that the Complainant had exhausted its sick leave entitlements over the preceding four years when she was returned to unpaid sick leave in April 2022, so it placed her back on payroll in error.

The Respondent told the hearing that an instruction was given on 28 April 2022 to ensure the Complainant was placed on unpaid sick leave, but as sick leave/pay is normally processed 4 weeks in arrears in the company, the Complainant received 5 weeks of pay in error which ceased on 2 June 2022.

The Respondent advised the hearing that the cessation of any pay in June 2022 was consistent with the fact that the Complainant has long exhausted all entitlements to sick pay and was expressly advised of this fact by management before going on career break leave.

The Respondent further advised the hearing that the three payments issued in April/May 2022 were clear overpayments to the Complainant but in the circumstances of the payroll error that was made, the Respondent told the hearing that it does not propose to seek reimbursement of this money from the Complainant.

It is in this context the Respondent submitted in its concluding remarks that it is not clear on what basis the Complainant is asserting that there has been a breach of the Payment of Wages Act and that the reimbursement or cessation of an overpayment does not amount to an unlawful deduction under Section of 5 the Payment of Wages Act.

CA-00052394-002

The Complainant who works as cabin crew for the Respondent submitted a claim of alleged disability discrimination under the Employment Equality Acts.

The Complainant also alleges that she was discriminated against on the grounds of disability due to the Respondent’s failure to provide an extension to her career break request based on her disability.

The Complainant asserts that had reasonable accommodation been provided by way of granting an extension to her career break to her by the Respondent she believes she would have been in a better position to return to the workplace.

The Respondent, represented by Elaine Mettler Employment Counsel rejected this contention for both complaints and furnished a comprehensive written submission on the date of the hearing which the Respondents representative referred to while providing an overview and timeline of the actions relating to the alleged breach.

The Respondent further rejects that there has been Discrimination. It says it was always willing to accommodate the Complainant though could not acquiesce to the demands being made by the Complainant in this regard.

The Respondent in this regard noted at the hearing that while they engaged with the Complainant at all times in relation to her objection to return from sick leave, they were still unclear how her objection to this amounts to unfair treatment related to her disability.

The Respondent also maintained that it always adhered in respect of the recommendations made in the medical assessments and reports conducted with the Complainant which outlined the Complainants needs particularly in respect of her ability to return to work duties and her suitability to work hours as set out in her contract.

Firstly, in relation to the Complainants complaint in regard to the Employment Equality Acts 1998 – 2008, 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 the Complainant. 

If the Complainant succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. 

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 first matter I have to consider is whether the Complainant has a disability within the meaning of the Acts. 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 Complainant advised the hearing that she is a person with a disability that suffers from anxiety and also depression. 

During the hearing, the Complainant referred to medical documentation which refer to her disability.

I also note that the Respondent referred the Complainant to an Occupational Health Consultant on numerous occasions.

In this regard I am satisfied on the evidence that the condition of anxiety and depression, is a “disability” within the meaning of the Acts.

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.

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 that she was aware that some other staff members were accommodated with extended career break arrangements, and she has been treated differently (and less favourably) to her colleagues for reasons that relate to her medical circumstances and disability in that her request was not granted.

In this regard, I note that during cross examination the Complainant was asked to give precise examples of such or identify who was the individuals, she was referring to and in what context that her colleagues were still on a career break or granted an extension to their career break, but she refused.

In the Complainants reasoning for not elaborating further, she informed the hearing that she would rather not say or identify her colleagues.

The Respondent in response 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 rejected the claim and argued that the career break/unpaid leave arrangements of other staff members referred to by the Complainant commenced at different times to the Complainants own arrangements (resulting in different return dates) and/or b) have been applied for /granted under subsequent and different leave schemes which were introduced in 2021 after she had already gone on her own career break leave.

In this regard, I noted and accepted the explanation the Respondent provided in regard to the context and setting the career breaks were granted during the relevant time period to the Complainant and other staff members.

On further note however, 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 an extension to her career break.

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 this regard, I accept the Respondent evidence that the career break/unpaid leave arrangements referred to by the Complainant commenced at different times to the Complainants own arrangements (resulting in different return dates) and/or b) have been applied for /granted under subsequent and different leave schemes which were introduced in 2021 after she had already gone on her own career break leave.

I also accept the explanation and evidence giving by the Respondent in relation to the nature and context the career breaks were granted during this period to many staff across the Respondents workforce and that it was as a result of the impact the Covid pandemic had on the Respondents business.

I further accept the Respondents evidence that the schooled date of return reflected the date of commencement of the career break so those who left earlier, returned earlier.

I also further accept the Respondents evidence that other staff who returned from career break at different times than the Complainant commenced their personal leave arrangements at a later date than the Complainant and therefore had a different return date.

While I do note the Respondents evidence of the attempts management made to try to explain this to the Complainant, I am of the view that this is where the misunderstanding between the Complainant and the Respondent manifested into a held belief which is understandable by the Complainant that the refusal to grant her an extension to her career break was discriminatory.

In this regard, I am also of the view that the confusion in this regard was not helped by the fact that there were a wide range of separate schemes open and ongoing to staff and subject to certain terms and conditions at the time.

However, I must note, while further communication and clarity could have been provided to the Complainant during this time to address the Complainants concerns, the refusal by the Respondent to not extend the Complainants career break does not amount to unfair treatment on the grounds of discrimination in relation to the disability ground or in respect of a failure to provide reasonable accommodation for a disability either.  

Furthermore, in relation to the Complainants claim that she believed the Respondent was attempting to engage in a pre-determined medical process to dismiss her from her employment because of her disability, I found no convincing evidence put forward by the Complainant that this was the case.

In this regard, I note that the Complainant has been absent from work since August 2019 and her employment has continued until present.

I also further note that despite the Complainant choosing not to engage or attend a number of appointments with several different doctors, occupational health advisors since February 2022, the Complainants still remains in employment with the Respondent.

I am also satisfied that the correct procedures, process and supports has and continue to be afforded to the Complainant.

Having carefully considered the submissions of the parties and the evidence before me , I am also 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.

In addition, the Complainant has not identified any comparator who availed of the same enhanced career break scheme as herself in 2020 and that was treated more favourably than her.

In closing I am not satisfied that the Complainant has adequately discharged the burden of proof in terms of demonstrating that the decision by the Respondent to not grant her request for an extension to her career break was due to her disability or in respect of a failure to provide reasonable accommodation for a disability.

Accordingly, I find that the Complainant has failed to establish a prima facie case of discriminatory treatment on the grounds of disability.

Accordingly, I also find that Complainant was not discriminated against by the Respondent in respect of a failure to provide reasonable accommodation for a disability.

CA-00052394-001

In relation to the complaint also submitted in regard to Section 6 of the Payment of Wages Act, 1991 the Complainant alleges that the Respondent has failed to pay her the amount of wages that she is properly due and this is contrary to the Payment of Wages Act 1991.

The Complainant believes that after her career break, she should have accrued fresh entitlements to sick leave and holiday pay after her career break ending and that she would be entitled to be paid (at least partially) for a certain length of time.

The Complainant submits that she was paid for three consecutive pay periods before it suddenly stopped.

On this note, the Complainant states that her payslips look very strange, and she is concerned she is not getting the pay she is entitled too.

The Respondent submitted that there are no wages due or owing to the Complainant and rejected this contention and furnished a submission and documentation at the hearing in support of that there are no wages due or owing to the Complainant.

The Respondent submitted that the Complainant has been on sick leave from August 2019 to 16 November 2020 and from 18 April 2022 to date. She also had previous sick leave absence in 2018. She had exhausted her entitlements to company sick pay (six months full pay six months ¾ pay) at the time of going on career break leave.

The Respondent also submitted that the Complainant was expressly advised at the point of her application for the Enhanced Career Break Leave scheme by management of the Respondent that going on career break leave would preclude her from accruing any further sick leave entitlements whilst on unpaid career break leave.

The Respondent advised the hearing that the Complainant was further advised that as she had exhausted her sick leave entitlements, at the time of going on career break leave, should she be declared unfit to fly in April 2022 on her return from career break, she would not receive any sick pay.

In addition, the Respondent noted that the Complainant was on career break leave from 16 November 2020 to 18 April 2022 and that she has not returned to work since her career break leave and has not worked for the Respondent since August 2019.

It is in this context the Respondent submits that the Complainant has no entitlement to pay on this basis.

In relation to the payment the Complainant states she received after returning to sick leave after her career break ceased, the Respondent I note did acknowledge and accept at the hearing that the Complainant did receive the total sum of €2686.28, in the form of basic pay in her fortnightly payslips of 21 April 2022 (€553.72), 5 May (€1066.28) and the 19 May 2022 (€1066.28). These were overpayments of salary made in error to the Complainant.

The reason the Respondent submits for this overpayment is that its internal payroll system did not update that the Complainant had exhausted its sick leave entitlements over the preceding four years when she was returned to unpaid sick leave in April 2022, so it placed her back on payroll in error.

I further note the Respondent explanation that an instruction was given on 28 April 2022 to ensure that the Complainant was placed on unpaid sick leave, but as sick leave/pay is normally processed 4 weeks in arrears in the company, but the Complainant received 5 weeks of pay in error which ceased on 2 June 2022.

On this note, I accept the Respondents explanation that the three payments in April/May 2022 made to the Complainant were due to the circumstances of the payroll error that was made.

I also took note that the Respondent does not propose to seek reimbursement of this money from the Complainant.

The definition of Wages in the Payment of Wages Act 1991 is as follows:

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.

Section 5 (6) states: Payment of Wages Act 1991 (6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

Section 5(5)(i) of the Payment of Wages Act 1991 provides that the following is not an unlawful deduction:

“a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where –

i) The purpose of the deduction or payment is the reimbursement of the employer in respect of-

a. Any overpayment of wages, or

b. Any overpayment in respect of expenses incurred by the employee in the carrying out of his employment,

c. The amount of the deduction or payment does not exceed the amount of the overpayment. “ Made (for any reason) by the employer to the employee, and (underlined for emphasis).

Having regard to the written and oral evidence presented in relation to this complaint I am satisfied there have been no unlawful deductions contrary to the Payment of Wages Act.

I note that the Complainant has not worked since August 2019 and has exhausted her sick pay entitlements. I am also of the view that the confusion in relation to this complaint is that the Complainant on her return from her career break received an overpayment of in the amount of in the amount of €2686.28. In this regard, I note that the Respondent acknowledges that an overpayment was made to the Complainant on her return from career break leave in the amount of €2686.28.

In this regard, the cessation of an overpayment is not an unlawful deduction contrary to the Payment of Wages Acts.

I am also satisfied that from the evidence abduced at the time that the Complainant had exhausted her sick leave entitlements. I also am satisfied at the time of going on career break leave, the Complainant was informed that should she be declared unfit to fly on her return in April 2022 on her return from career break, she would not receive any sick pay.

Having regard to the written and oral evidence presented in relation to this complaint, I find that the alleged deductions made by the Respondent have been adequately explained and accordingly I find that the complaint is not well founded.

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

CA-00052394-002 The Complainant herein was not discriminated against and has failed to raise a prima facie case of discrimination on the grounds of disability within the meaning of the Act. 

I am also satisfied that the Complainant was not discriminated against by the Respondent in respect of a failure to provide reasonable accommodation for a disability.

Accordingly, I declare this complaint to be not well founded.

CA-00052394-001- seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991.

Having regard to the written and oral evidence presented in relation to this complaint, I find that the alleged deductions made by the Respondent have been adequately explained by the Respondent and accordingly I find that this complaint is not well founded.