EDA2471

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00030453 (CA-00040714-002)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 4 September 2023. A Labour Court hearing took place on 6 November 2024.

The following is the Decision of the Court:-

DETERMINATION:

1Background to the Appeal

 This is an appeal by Rosalind Murray (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-0030453 CA00040714--002 dated 26th July 2023) under the Employment Equality Act 1998 (‘the Act’).  The Complainant’s Notice of Appeal was received in the Court on 4 September 2023. The Court heard the appeal in Waterford on 6 November 2024.

The complaint was lodged with the WRC on 30 October 2020. The cognisable period for the purpose of the Act is 1 May 2020 to 30 October 2020.  The Adjudication Officer held that the complaint was not well founded.

At the commencement of the hearing an issue arose as to whether or not there was a breach during the reckonable period as required by the Act. With the agreement of both parties the Court proceeded to hear submissions in respect of the alleged breaches during the period 1 May 2020 to 30 October. It was agreed with the parties that if the Court determined there was a breach within that period then it was open to the Complainants representative to argue a continuum in respect of breaches outside of that time period.

2 Summary of Complainants submission

 Mr Marron BL submitted that the Complainant is employed with the Respondent since September 2002, and since 2015 has held the position of Lecturer of Graphic Design.   The Complainant was diagnosed with chronic fatigue syndrome and has been under the care of a consultant since October 2012.  The Complainant in 2017 /2018 had engaged with the Respondent to manage her timetable based on medical advice at that time. In September 2018 the timetable for that academic year was distributed by email, and in December 2018 she had sought to engage with her manager to address timetable concerns she had for the following academic year. In particular she sought to have her lecture hours allocated in the mornings as she had more energy then.

The Complainant by email of 2 September 2019 notified the Respondent that she would be absent for that college term due to “medical condition and stress” and that a medical certificate to that effect would follow in the post. She also confirmed that her Medical Consultant had put his report to Medmark in the post the previous Friday 30th August 2019. The Complainant went on to say that she would appreciate it if Dr Walker could be contacted for an updated occupational health assessment report.            

Mr Marron BL stated that  in terms of disability as defined by the Act they are relying on the Complainant’s  disability of chronic fatigue syndrome as falling under (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 and 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.

 In respect of the act of discrimination within the reckonable period, Mr Marron BL submitted that this was not a case where there was a particular act that could be identified. It was his submission that the Respondent had a duty to the Complainant. The Complainant by letter of  10 March 2020 had reminded the Respondent that in a letter dated 4 December 2019 they had stated that they had intended to schedule an appointment for the Complainant with Occupation Health, and they had failed to do that. She included at that time a medical certificate covering her absence due to work related stress.  A further letter was sent by the Complainant reminding the Respondent that her last assessment had been in March 2019 despite being absent on certified sick leave since September 2019 and that she had not received a response to her previous letter of 10th March 2020.  Mr Marron Bl stated that it was his submission that this failure to refer the Complainant for an occupational assessment during that period constituted an act of discrimination.

 Mr Marron BL confirmed to the Court that the Complainant would not be giving evidence in respect of this element of her case.

3 Summary of Respondents submission

Ms Guiness BL for the Respondent submitted that the Complainant was on proof of having a disability at the relevant time and identifying a breach of the Act during the reckonable period 1 May 2020 to 30 October 2020.  The Respondent had lengthy and extensive engagement with the Complainant in relation to her illness and periods of sick leave. The Complainant attended with Dr Walker of Medmark on 28 March 2019 for an Occupational Health Assessment. Dr Walker provided an initial report dated 28 March 2019 which confirmed that the Complainant was fit to work and stated that corroborating medical evidence was required from the Complainant’s doctors to assess any indications for accommodations.

 Dr Walker provided a subsequent report dated 22 July 2019 which noted the unsuccessful efforts that had been made to obtain details from the Complainant’s treating Doctor.  The latest report she had  was May 2019 which had noted a remarkable improvement in the Complainant’s general condition. Medmark received a report from her treating Doctor on late August/ early September 2019 a number of months after it was requested, which made certain recommendations regarding her work schedule which the report suggested ‘may be helpful’.

The Complainant then commenced a period of sick leave on 2 September 2019 in and around the time the report was received by Medmark.  Ms Guiness BL submitted that the Complaint during the reckonable period was certified unfit for work due to medical condition and stress and the Respondent was not put on notice that her absence was due to a disability. The Complainant had failed to identify a comparator who was treated differently to her

It is the Respondent’s submission that the decision to send someone to occupational health is not an acceptance that the person has a disability, and not sending someone who has requested to be sent cannot be an act of discrimination.  The Complainant had failed to identify a comparator who was treated differently to her and has failed to identify a breach of the Act during the reckonable period and therefore her complaint must fail.

Ms Guines BL confirmed that the Respondent was not putting forward any witnesses in respect of this aspect of the case.

4 The Burden of Proof

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”.

5 Discussion and Decision

Having given careful consideration to the Parties’ oral and written submissions the Court finds that the Complainant has not established any facts from which an inference that she was less favourably treated on the grounds of disability can be made. The Complainant has failed to identify a comparator and failed to identify an act during the cognisable period linked to a disability that could be considered less favourable treatment. Having found that the Complainant failed to identify such an act the Court did not need to consider whether the Complainant had a disability as defined by the Act.

The Complainant has failed to establish a prima facia case and therefore, her complaint must fail.

 The appeal fails the decision of the Adjudication Officer is upheld

 The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CC	______________________
19th December 2024	Deputy Chairman

NOTE

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