EDA2458

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00040902 (CA-00052524-001)

BACKGROUND:

The Worker appealed the Determination of the Adjudication Officer to the Labour Court on 21 August 2023. A Labour Court hearing took place on 7 and 7 November 2024.  The following is the Court's Determination.

DETERMINATION:

This is an appeal by a Niamh Jennings (“the Complainant”) against a decision of an Adjudication Officer under the Employment Equality Acts, 1998 to 2021 (“the Act”) concerning a complaint of discriminatory treatment on the ground of disability against her former employer, SSE Airtricity, (“the Respondent”). 

The Adjudication Officer found that the Complainant was not discriminated against and that her complaint under the Act was not well founded.

The complaint under the Act was made to the Workplace Relations Commission (WRC) on 1 September 2022 and the decision of the Adjudication Officer giving rise to the within appeal issued on dated 12 July 2023. An appeal of that decision was received by the Court on 21 August 2023.

Background

The complainant commenced employment with the respondent in December 2020. She submitted her resignation on 16 May 2022 and her employment terminated on 23 May 2022.

Summary of the Complainant’s Position

The Complainant submits that the Respondent was aware of her mental health issues.  She was subject to exclusion and bullying by team members, following a public disclosure by her on social media in January 2022. When she sought to address the matter with her line manager, she was ignored. Her concerns about harassment by colleagues were not treated seriously and were believed to be a symptom of her mental health issues.

The Complainant disclosed a breach of confidentiality by a third party in relation to her medical history to HR. That matter was not taken seriously, and the breach of confidentiality was denied.  HR did not address her concerns about harassment in the workplace.

The Respondent was aware of her disability. She was discriminated against and subject to adverse discriminatory treatment during her employment, as her complaints were not taken seriously.

Summary of the Respondent’s Position

The Respondent denies that the Complainant was subject to harassment or any adverse treatment on the disability ground during her employment.

The Complainant raised an informal issue about her work colleagues with her line manger during a daily check in meeting regarding work related issues. The words bullying and harassment were never used, and no formal complaint ever made. The Respondent denies that the Complainant was targeted, ignored or excluded by colleagues. She has provided no facts to support those assertions.

The Complainant’s line manager was aware of the Complainant’s mental health issues and sought to establish supports for her by referring her to Occupational Health. When the Complainant was certified fit to return to work after a period of certified absence, the Respondent instigated an absence management process due to the Complainant’s unauthorised absences and continued failure to comply with the absence policy. Such measures do not constitute less favourable treatment on the disability ground.

The Complainant made disclosures about a breach of confidentiality by a third party relating to her medical history and harassment by an external person unconnected to the Respondent. There is no discernible connection between those matters and the Complainant’s employment. The Respondent denies any knowledge of the breach of confidentiality alleged. Not being aware of an alleged breach of confidentiality does not constitute less favourable treatment on the grounds of disability.

The Complainant has failed to establish any facts upon which it could be presumed that she was subject to harassment or subject to discriminatory treatment on the grounds of disability. The Complainant’s perception and views are not sufficient to ground a prima facie case under the Act.

The Applicable Law

Section 85A (1) of the Act provides: -

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

Deliberations

Both parties confirmed to the Court that they were satisfied that the Court had heard all relevant arguments.  Both parties declined to proffer any witness testimony.

It is accepted by the Respondent that the Complainant suffered from a disability relating to her mental health during the relevant timeframe for the complaint. She submits that she was subject to adverse treatment, which included bullying and harassment by colleagues, because of her disability.

The burden of proof

In any case involving an allegation of discrimination the Court must first consider the allocation of the burden of proof between the parties. 

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 well-established test for ascertaining if the burden of proof shifts to the Respondent was set out 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.

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 fact that a person has a disability is not on its own sufficient to raise an inference of discrimination such that the burden of proof under the Act shifts to the Respondent. The Complainant must prove the primary facts upon which she relies in seeking to raise a presumption of discrimination.  If the Complainant fails to do so, her complaint cannot succeed. 

In response to questions from the Court, the Complainant was unable to point to any facts or evidence that could infer that she was adversely treated on the ground of disability compared to other employees, or that she was subject to harassment on account of her disability.

The Complainant’s perceptions and views are not sufficient to support her assertion that she was discriminated under the Act, such that it establishes a prima facie case.

It is for the Complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.

The Court finds that in this case no such facts were established.

Having regard to the oral and written submissions presented, the Court finds that the Complainant has not established sufficient facts from which an inference of discrimination can be drawn.  Accordingly, the Court finds that the Complainant has failed to establish a prima facie case of discrimination.

Determination

For the reasons set out above, the Court is satisfied that the Complainant was not discriminated against on the ground of disability. The complaint is not well founded.

The Complainant’s appeal fails.

The Decision of the Adjudication Officer is affirmed.

	Signed on behalf of the Labour Court
	Katie Connolly
FC	______________________
25th November 2024	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Fiona Corcoran, Court Secretary.