EDA2427

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00044745 (CA-00055568-001)

BACKGROUND:

The Employer appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 19th September 2023.  A Labour Court hearing took place on 10th July 2024. The following is the Decision of the Court:

DETERMINATION:

This matter comes before the Court as an appeal by Kerry County Council (the Appellant) against a decision of an Adjudication Officer in a complaint made by Mary Mac Galey (the Complainant) under the Employment Equality Act, 1998 (the Act). The Adjudication Officer decided that the complaint was well founded.

Background

The Complainant contended that she suffered from a disability from 2016 onwards and that the Appellant did not afford her reasonable accommodation so as to facilitate her in carrying out her role. The Appellant contends that at all times it has sought to afford reasonable accommodation.

The Appellant submits that the within complaint is out of time having regard to the time limits set out in the Act. The Complainant contends that she has been subjected to a continuum of discrimination on grounds of disability since 2016, and that the latest act of discrimination prior to the submission by her of her complaint under the act occurred on or after 14th December 2022, on which date she wrote to the Chief Executive of the Appellant.

The Complainant contends that she required the Appellant to allow her to work six half days per week with five of those half days being the mornings of the five days of her working week and the sixth half day being spread across all five days so as to create a lengthier working half day on each of those days of the week. The Appellant’s response that she would be afforded a working regime based on four half days’ and one full day’s attendance each week is considered by the Complainant to be inadequate and discriminatory.

The proposal that she would work the pattern set out by her was first put to the Appellant in a letter dated 16th April 2019 wherein the Complainant’s GP stated:

“Mary is currently working 5 half days per week.

She is managing well with this arrangement, and she feels that she is now ready to increase work hours to six half days per week, with this extra half day spread evenly over the five days.

I am in agreement with this suggestion.”

No submission has been made that any further engagement with medical experts and practitioners took place after 16th April 2019.

The Appellant responded to this letter on 9th May 2019 to say that under existing flexible hours working schemes the Complainant’s request could only be accommodated by one full day and four half days in that it was not possible to incorporate the ‘floating’ sixth half day within its work system.

 The Complainant wrote to the Chief Executive of the Appellant on 14th December 2022 wherein she set out a range of issues and stated that she wished to have these issues to be addressed, including

• Her wish to attend for work on six half days per week in the manner set out by her GP in April 2019
• Poor handing of an ergonomic report dated May 2018 which had been commissioned by the Appellant.
• The fact that she made a subject access request in order to access correspondence dating from 2016 to 2018.
• The fact that the subject access request revealed certain correspondence between two officials of the Appellant dated 3rd August 2018.
• The fact that there was, as of 14th December 2022, an unresolved issue relating to authorised leave in 2017.
• That the Complainant worked in excess of five half days per week on an unpaid basis.
• Finally, the Complainant advised the Chief Executive that she awaited her response.

The Chief Executive responded to the Complainant’s communication on 18th January 2023 apologising for not having confirmed receipt of her complaint before Christmas. In addition, the Chief Executive, in that mail, advised the Complainant that she had spoken to the Director of Service and that he had undertaken to make contact with her.

The Complainant wrote again to the Chief Executive on 18th February 2023 to tell her that the Director of Service had not dealt with the matter and asking the Chief Executive to personally deal with the issue.

Approach of the Court

The Appellant has submitted to the Court that she was the subject of discriminatory treatment on the ground of disability, in that the Respondent failed to provide her with reasonable accommodation.

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“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.”

This Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

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”.

The Complainant has contended that the events prior to the cognisable period of her complaint, which is 16th September 2022 to 15th March 2023, should be viewed as a continuum of discriminatory events culminating in an act of discrimination on or after 14th December 2022. The Appellant has submitted that events outside of the cognisable period for the within complaint are out of time.

Section 77(5)(a) of the Acts provides: -

(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.

Section 77(6A) provides: -

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,

The Court, in Cork County VEC v Hurley (EDA24/2011), in considering a contention that events which occurred outside the cognisable period for the complaint made could be considered as part of a regime or continuum and thus within the jurisdiction of the Court stated

‘that if these occurrences were found to be acts of victimisation the Court would hear evidence in relation to all of the occurrences relied upon.  If, however these occurrences were found not to have involved victimisation, the complaint relating to the earlier occurrences could not be entertained having regard to s.77(5) of the act as the most recent occurrences would have been outside the time limit.’

“ in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit.  There can be practical difficulties in applying that provision.  There must be some reality in the claim that acts of victimisation actually occurred within the limitation period.” 

The Court therefore, consistent with its approach in Cork County VEC v Hurley (EDA 24/2011), must first consider whether an act or acts of discrimination occurred within the cognisable period for the within complaint before it can consider whether events outside of that period can be considered to be part of a continuum or regime of discrimination and within the jurisdiction of the Court. It is only if the Court forms such a conclusion that it can consider events which occurred prior to the cognisable period.

The Court in the within matter therefore decided to consider first the event submitted by the Appellant to have amounted to an act of discrimination which occurred in the cognisable period for the within complaint. The Complainant submitted that the latest act of discrimination to have occurred was the Chief Executive’s failure to reply to the Complainant’s letter of 14th December 2022. She has not contended that any other act of discrimination occurred at any other time during the cognisable period for the within complaint.

Summary submission of the Complainant in relation to the alleged act of discrimination occurring within the cognisable period.

The Complainant submitted that the latest act of discrimination was the failure to reply to her letter of 14th December 2022. In that letter she had clearly highlighted that the Appellant was at a continuing failure to accommodate her return to increased employment as per the medical recommendations. This was not a grievance; this was an attempt by the Complainant to reach out to the highest level within the Appellant organisation to allow her work pattern to be increased.

This is part of a continuum of refusal to reasonably accommodate the Appellant.

The Appellant gave evidence under oath regarding a range of medical and other assessments across the years from 2016 to 2019. At various stages medical advice was to the effect that she should be accommodated with a gradual return to work, and that various elements of equipment should be provided to her. She stated that not all of the accommodations she required were provided to her and that substantial delays occurred across those years in providing her with the recommended equipment.

She said that she did not agree with a medical assessment in 2017 which recommended a gradual return to normal working. She outlined various engagement undertaken by her with the Appellant across the years in question.

She stated that she continued to believe that she would be unable to work a full day up to and including to the date of her letter to the Chief Executive in December 2022. She agreed that no medical assessment had engaged with that matter since the letter which had been written by her medical adviser in 2019.

Under cross examination she agreed that most of the equipment recommended to be provided to her was provided to her, albeit a cable tie and a specific variety of footstool remained outstanding as of 2022.

When questioned by the Court she stated that whereas she was unable to work a full day she did, at times, carry out additional unpaid work which she did not make her supervisor aware of.

Summary submission of the Appellantin relation to the alleged act of discrimination occurring within the cognisable period.

The Appellant submitted that the complaint of the Complainant was made out of time. Her letter to the Chief Executive was in fact a new grievance raised by her and relied upon Business Mobile Security Ltd t/a Seneca Limited v John McEvoy [EDA 16521] in that regard.

The Appellant has sought to provide the Complainant with reasonable accommodation to meet her needs. All assessments undertaken by the Appellant were undertaken in accordance with the Safety, Health and Welfare at Work (General Application) Regulations. The Appellant sought to provide her with all of the equipment recommended following any such assessment.

The specific request of the Complainant to work a 6th half day over five days was considered in the context of the Local Authority Work Sharing scheme operated across the Local Authority sector in which only blocks of half days or full days can be worked. If additional hours were to be worked by the Complainant in the manner she sought, that would effectively mean that there would not be fixed pattern of working but rather one to be decided by the Complainant on a day by day/ week to week basis. On that basis it was simply not possible to accommodate her in the manner she suggested in 2019.

All of the medical assessments conducted by the Appellant have recommended a return to full time hours by the Complainant. The only request that has not been accepted by the Appellant is the suggestion that she be permitted to work an additional half day over five days.

Evidence was given on behalf of the Appellant by Liam Quinlan who was a manger of the Appellant at the material time. He outlined the history of engagement with the Complainant in the years from 2016 to the date the within complaint was made to the Workplace Relations Commission.

He stated that the Complainant could not, having regard to the flexi-time system of time recording in the Appellant organisation, have worked additional hours without pay or time off and without the knowledge of her supervisor or manager as she had asserted. The systems in place in the organisation ensure that the working hours of any employee who works additional hours are recorded and that any such employee is facilitated with time off at another time. He stated that the Complainant has availed of that flexi-time system to avail of time off. He said that he had no role in any matter arising from or related to the letter of the Complainant to the Chief Executive of December 2022.

Discussion and conclusions

It is for the Complainant in the first instance as set out by this Court in Mitchell v Southern Health Board [2001] ELR 201 to raise an inference of discrimination before the burden shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. In order to raise an ‘inference’ the Complainant must prove the primary facts upon which he relies.  In Melbury Developments v Arturs Valpeters EDA0917 the Court stated

“ Section 85A of the Act 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”. 

The Complainant submits that the Chief Executive’s failure to reply to her letter of 14th December 2022 amounts to an act of discrimination on the disability ground and that this act of discrimination occurred within the cognisable period for the within complaint.

The primary issue brought to the attention of the Chief Executive was what the Complainant alleged was the continuing failure of the Appellant to afford her a working pattern which, according to her medical adviser, the Complainant herself had suggested and with which the medical adviser agreed in April 2019. No evidence was adduced, or submission made before the Court that the suggestion was based on a medical assessment carried out in April 2019, or that any continuing request for such a pattern of working to be accommodated by the Appellant at any time since 2019 was based on any medical assessment related to the disability of the Complainant.

The letter, in substance, amounted to a recounting by the Complainant of a narrative alleging failings of the Appellant organisation over a period of some six years. The content of the letter did not amount to any new event occurring in the cognisable period for the within complaint, as distinct from her dissatisfaction with events which occurred prior to the cognisable period.

It is common case that the Chief Executive of the Appellant did respond to the letter of the Complainant on 18th January 2023, which was approximately one month after the letter had been received. In the view of the Court, the contention, against this factual background, that the Chief Executive had committed discriminatory act by her failure to reply to the Complainant’s letter of 14th December 2022, is not a reasonable assertion.

The Court, having carefully considered the complaint submitted by the Complainant as regards a discriminatory act alleged to have been committed by the Appellant in the cognisable period for the within complaint, has concluded that the Complainant has not established facts from which the occurrence of an act of discrimination on the disability ground may be inferred. 

The Court having determined that the Complainant has not discharged the burden of establishing primaryfacts from which an incidence of discrimination within the cognisable period for her complaint may be inferred must conclude that the within appeal should succeed.

Decision

For the reasons set out above the Court concludes that the within appeal succeeds and the decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
8 August 2024	Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.