ADE/23/30 | DETERMINATION NO. EDA2426 |
SECTION 44, WORKPLACE RELATIONS ACT 2015
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015
PARTIES:
(REPRESENTED BY PADRAIG J SHEEHAN SOLICITORS)
AND
JACK CONROY
DIVISION:
Chairman: | Ms Connolly |
Employer Member: | Ms Doyle |
Worker Member: | Ms Treacy |
SUBJECT:
Appeal of Adjudication Officer Decision No's: ADJ-00039419 (CA-00050985-002)
BACKGROUND:
The Worker appealed the Determination of the Adjudication Officer to the Labour Court on 20th February 2023. A Labour Court hearing took place on 10th July 2024. The following is the Court's Determination.
DETERMINATION:
This is an appeal by John Conroy against the decision of an Adjudication Officer in a claim that his former employer Atlantic Troy Limited (i) discriminated against him on the disability ground, (ii) failed to provide him with reasonable accommodation, and (iii) subjected him to a discriminatory dismissal contrary to the Employment Equality Acts 1998 to 2015 (“the Acts”). The Adjudication Officer found that his complaints were not well founded.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr John Conroy is referred to as “the Complainant” and Atlantic Troy Limited is referred to as “the Respondent”.
A Court hearing took place on 10 July 2024. Both sides made submissions to the Court and were given an opportunity to comment on the others submission. No witness testimony was proffered by either party.
Summary Position of the Complainant
The Complainant’s employment was terminated after 11 weeks of employment. His dismissal was unrelated to his probation.
The Respondent engaged in multiple breaches of GDPR and health and safety regulations to systematically conceal that their intention was to dismiss the Complainant. The dismissal was planned and engineered to exclude the Complainant from using the grievance procedure.
The Complainant was legally entitled to be allowed an opportunity to state his disability and request reasonable accommodation. There was no mechanism, procedure, or facility to enable the Complainant to communicate his disability that respected his rights under the Data Protection Act.
The Complainant was asked to fill out a medical questionnaire by a person who wasn't professional or qualified to assess that information, or to be provided with such personal medical information. That information should be kept confidential and processed professionally. The Complainant was entitled to dignity and privacy in his employment and in his personal life. He did not give the Respondent consent to process his health data.
The job description for the role involved a significant amount of manual handling. The Respondent was legally obliged to consult the Complainant about a risk assessment, without the Complainant requesting it, that would have provided him some facilitation to refer to his disability.
The Complainant was subject to numerous instances of discrimination including a reduction in his working hours without consent. The Complainant was dismissed at a meeting and informed that the reason for his dismissal was because the Respondent was looking for people that could work faster. A judgement about not being able to work fast enough is a judgement of ‘ability’. The Respondent cannot say that a judgement about ability is nothing to do with ‘disability’ when the person being judged is disabled. When the Complainant mentioned about disability at the termination meeting, the decision to dismiss should have been suspended pending a review.
The purpose of equality legislation is to ensure that people are not discriminated against on the grounds of disability. If the Respondent had complied with its legal obligations, it is likely that reasonable accommodation would have been available to the Complainant without a need for him to formal request it.
Summary Position of the Respondent.
The Complainant was employed as a Porter from 7 March to 27 May 2022, when his employment was terminated by the Respondent.
The Complainant contends that he was dismissed on the disability ground. The Complainant acknowledges that the word ‘disability’ was first mentioned by him after the decision was made to terminate his employment. The Complainant has not identified the nature of any such alleged ‘disability’. The Complainant has failed or refuses to identify the nature of such a disability, and, in such circumstances, a prima facie case of discrimination has not been established.
The Complainant completed a medical questionnaire at the commencement of his employment. In that document he made no reference to having any medical history that would in any way hinder the performance of his contractual duties. The document signed by the Complainant 8 March 2022 clearly acknowledges his duty ‘…to inform the company of any changes in my health which may affect my ability to carry out my duties as required’.
The Respondent is and continues to be unaware of the alleged disability that the Complainant alleges to suffer from, but which, it appears, is undeserving of a description. The “disability” that is incapable of being described is the Complainant’s inability to establish a prima facie case of discrimination.
Relevant Law
Section 2 of the Act defines the term “Disability” as follows: -
(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;
Deliberations and Findings
The Court’s jurisdiction in this case is confined to assessing whether the Complainant was subject to discrimination on the disability ground in contravention of Employment Equality Acts. The Court has no jurisdiction to hear complaints relating to GDPR or alleged breaches of health and safety legislation.
In any case involving an allegation of discrimination the Court must first consider the allocation of the burden of proof between the Complainant and the Respondent.
Section 85A provides that where a Complainant establishes facts from which discrimination may be inferred it then falls to the Respondent to prove that the principle of equal treatment was not infringed.
The established test for ascertaining if the burden of proof shifts to the Respondent was set out by this Court in Mitchell v Southern Health Board [2001] E.L.R. 201. That three-tier test provides: -
1) It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so. he or she cannot succeed.
2) If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.
3) If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent, (Mitchell v Southern Health Board [2001] ELR 201)
In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that: -
“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.
In the within claim to establish a prima facie case of discrimination on the disability ground, the Complainant must firstly have satisfied the Court that he had a disability at a time material to his claim and secondly, he must prove that the Respondent was on notice that he had a disability
The issues arising in this case are, as follows: -
- Was the Complainant a person with a disability at the time material to his claim? If so: -
- Was the Respondent on notice of the disability?
- Was the Complainant discriminated against on grounds of his disability
Was the Complainant a person with a disability?
In this case the Respondent denies any actual or constructive knowledge of the disability relied upon by the Complainant. In these circumstances, it is for the Complainant to adduce evidence showing that he was a person with a disability at the time material to his claim. He must also proffer some evidence to establish, in a prima facie way at least, that the Respondent knew or ought to have known that he was such a person.
The Complainant said that he had a registered disability but declined to share nature of that disability with the Court.
On the Complainant’s own admission, he did not tell the Respondent that he had a disability at any point during his employment, nor did he seek reasonable accommodation for that disability. Furthermore, when he raised the subject of disability at the termination meeting, he did not advise the Respondent that he had a disability.
Before an employer can be answerable for disability discrimination against an employee, the employer must have actual or constructive knowledge that the employee was a disabled person.
On the evidence before it, the Court is not satisfied that the Complainant has established facts to indicate that the was suffering from a disability at any material time to this claim. Furthermore, on the evidence, the Court does not accept that the Respondent could have had direct or constructive knowledge to indicate that he was suffering from an illness that amounted to such a disability.
In these circumstances, by application of the established test, the Court finds that the onus of proving the absence of discrimination does not shift to the Respondent.
Determination
For the reasons set out above the Court finds that the Complainant has failed to establish facts from which discrimination on the disability ground could be inferred. Accordingly, his claim cannot succeed.
The Complainant’s appeal is disallowed, and the decision of the Adjudication Officer is affirmed.
The Court so Determines.
Signed on behalf of the Labour Court | |
Katie Connolly | |
FC | ______________________ |
6 August 2024 | Deputy Chairman |
NOTE
Enquiries concerning this Determination should be addressed to Fiona Corcoran, Court Secretary.