Complainant

Respondent

Anonymised Parties

A Worker

A Healthcare Facility

Representatives

James McEvoy Work Matters Ireland

Hugh Hegarty Management Support Services (Ireland) Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00046009-001

06/09/2021

The Complainant stated that he was employed within the Maintenance Department of the Respondent from 18 June 2008 until his employment was terminated on 15 July 2021. He stated that his dismissal was discriminatory. The Respondent disputed that he was dismissed.

In March 2020, the Complainant returned to work following a period of absence due to a cancer related illness. He was working reduced hours for a number of weeks, when it was agreed with his supervisor that he should not continue to work as his health condition categorised him as a vulnerable person with regard to COVID19.

The Respondent subsequently prepared a letter to allow him to avail of the government’s Pandemic Unemployment Payment (PUP) scheme further to which there was no subsequent communication until August 2020, when a letter dated 26 August 2020 was sent by the HR Business Partner to address the matter of the Complainant’s long-term absence. In this correspondence, the HR Business Partner stated that she had made several attempts to contact the Complainant by phone but the Complainant stated that he received no calls to his landline or mobile and had previously returned his work mobile phone to the Respondent.

Following the letter dated 26 August 2020, the Complainant sought to return to work and made this request on several occasions. In a meeting on 22 October 2020, the Respondent maintained that the Complainant was not well enough to attend work and asked for certification to show that he was fit to return to work, despite also maintaining a lay-off scenario. While the Complainant was unhappy with this request to provide the certificates, he nonetheless agreed to do so.  

In November 2020, the HR Business Partner telephoned the Complainant and informed him that he had one week to provide the requested medical certification. Although the Complainant subsequently provided a doctor’s letter, dated 23 November 2020, certifying his fitness to return, the Respondent did not allow the Complainant to resume work and there was no follow-up from the Respondent on receipt of the doctor’s letter. The Respondent subsequently wrote to the Complainant, disregarding the doctor’s letter and again requested medical certificates to support his absence. After a period of no communication, in January 2021 the HR Business Partner called the Complainant to request a second more recent doctor’s letter to support a return-to-work. The Complainant provided another letter from his doctor explaining that he was at no significant additional risk because of his health condition. The Complainant again received no response from the Respondent to progress a return to work however and made numerous calls to the HR Business Partner to move the matter forward but these calls were not answered or returned.

After a further period of no communication, the Complainant was contacted in March 2021 by the HR Business Partner and informed that, because his of health condition, his employment was to be terminated by reason of redundancy. The Complainant stated that while he was keen to return to work, he was open to a discussion regarding redundancy. Subsequently, the Complainant was contacted again by the HR Business Partner to inform him that redundancy was not an option because his job still existed but was being carried out by another person. Although the Complainant in his conversation with the HR Business Partner referred to the letters from his doctor confirming that he was fit for work, the HR Business Partner did not engage in a discussion with him around this and there was no attempt to arrange a return him to work.

The Complainant made several subsequent attempts to contact the HR Business Partner but these calls went unanswered and were not responded to. On 18 June 2021, the Complainant received email correspondence, with a settlement agreement attached. This document stated that the Complainant was to leave his employment because of ill health and that it had been produced following advice with the agreement and knowledge of the Complainant. The Complainant had no such discussions with the Respondent and had never indicated that health issues prevented him from working. This document was completely unexpected and caused the Complainant a considerable amount of stress. It had already been signed by the Respondent and included the false attestation that both parties had sought the appropriate advice to enter in to such an arrangement. The Complainant wrote to the Respondent on 7 July 2021 and stated that this document constituted his dismissal. He also sought an explanation as to why his employer considered that he had no future with the organisation.

Further to this correspondence, arrangements were made for the Complainant to speak with the HR Business Partner and the Director of Nursing on 15 July 2021. As the Complainant has impaired hearing, and given the virtual platform of the meeting, the Complainant asked if he could be accompanied on the call but the Respondent denied the request. During the meeting, the HR Business Partner and the Director of Nursing argued that the settlement agreement was not a proposal to dismiss the Complainant but rather a goodwill gesture to facilitate the Complainant’s departure from the business. Both the HR Business Partner and the Director of Nursing made it clear that if the Complainant returned to work, he would ultimately be dismissed because he would be unable to perform his duties in the longer term. They suggested that a termination of his employment on the agreed terms was the better option all round. There was no explanation given as to how the Company reached this decision and although the Complainant requested that the notes of the meeting be forwarded to him, these were not provided.

The Complainant wrote to the Respondent on 20 July 2021 informing them of his view that he had been dismissed by virtue of the settlement agreement having been sent to him. The HR Business Partner subsequently replied to the Complainant on 22 July 2021, wherein she disputed this assertion and highlighted that a range of options had been presented to him at the 15 July 2021 meeting. The Complainant disputed this and also asserted that no return-to-work option was provided. He also disagreed with the HR Business Partner’s suggestion that she made numerous attempts to contact him on his work mobile phone which he had returned to the Respondent some time previously. The Complainant also disputed the suggestion made by the HR Business Partner in her correspondence that he had not been laid off and highlighted that although he asked for minutes of the 15 July 2021 meeting, these were not provided. He also stated that the HR Business Partner once more requested that he provide medical certification to support his absence and his fitness to return to work. The Complainant stated however that he had previously provided this documentation, on two occasions, in November 2020 and in January 2021 but that these were ignored by the Respondent. He asserted that the request for further medical certification supported his view that the Respondent did not wish for him to return to work.

Following the resignation of the HR Business Partner, the Complainant was contacted in April 2022 by the HR Generalist, who advised him that she was available to support him and that she was looking forward to meeting with him to facilitate his return-to-work. Despite the assurances given by the HR Generalist however, there was no further communication from the Respondent, other than to tell the Complainant of a job advertisement, which he asserts was an advertisement for his role and constituted further evidence of the termination of his employment.

Prior to the Covid pandemic the Complainant, who is employed as part of the Respondent’s Maintenance Team was on long term absence owing to treatment for kidney cancer and returned to work in February 2020. The Respondent’s HR Business Partner acted as his point of contact and support during his illness. When notified that he was fit to return, the Complainant was requested to attend the Respondent’s company doctor and, based on the report provided, returned to work on a phased basis.

In or around March 2020, the impact of Covid started to become apparent and the Complainant advised that he was stressed and concerned because he was immunocompromised. On that basis, he felt it prudent to leave work and go home immediately.  The Respondent fully understood his concerns and it was agreed that he would leave work.

Following this, the Complainant remained on uncertified sick leave. Throughout this time, the Respondent sought to support him by way of welfare calls and meetings and access to the EAP service. He was also allowed to retain his company mobile phone.

In or around April 2020, the Complainant requested a letter confirming he was unable to work due to Covid 19 to enable him access the Covid PUP. The Respondent provided this letter and stated that they had no suitable work available. He was not placed on lay off and his status on the time management system was uncertified sick leave. The request from the Complainant suggested that he did not anticipate returning to work in the foreseeable future and the Respondent was supportive of his needs at that time.

Throughout the Complainant’s absence, the Respondent, through the HR Business Partner, kept in regular contact with him however in general her calls were unanswered even though the Complainant had a company mobile phone. As a result of the difficulties in contacting him, the HR Business Partner decided on 26 August 2020 that it was necessary to issue a letter requesting a welfare meeting via Zoom for 31 August 2020.  At this meeting, the Complainant clearly confirmed the Respondent of his intention not to return to work due to the ongoing Covid pandemic and his serious health concerns. He further confirmed his GP’s advice not to return to work. Although the HR Business Partner requested the Complainant to provide medical certificates to support the absence, no such certificates were provided by the Complainant.

On 16 September 2020, on a welfare call with the HR Business Partner, the Complainant confirmed that while he wanted to return to work his GP would not certify him fit to do so. Further calls were placed to the Complainant by the HR Business Partner on 5, 19 and 29 October 2020, all of which were unanswered.

During a welfare call on 10 November 2020, the Complainant reiterated his wish to return to work and the HR Business Partner advised that when a fit cert was received from his GP, she would schedule a meeting to discuss the details of his return. The Complainant advised that he had yet to schedule a follow up appointment with the GP since their last call, but that he would give it his immediate attention as he was keen to return to work. The HR Business Partner agreed to follow up with the Complainant on 17 November 2020, providing one week for him to meet with and obtain a fit cert from his GP. On 17 November 2020, the Complainant confirmed an appointment with his GP on 24 November 2020 and it was agreed that he would update the HR Business Partner following the consultation. However, he failed to contact the Respondent and no medical certs were provided.

On 26 January 2021, the HR Business Partner managed to contact the Complainant again, at which time he stated that his GP had issued a letter to him which he would share with the HR Business Partner. However, no letter was ever received. Of significance at this time is that the Respondent, as a healthcare facility, was able to roll out a vaccination programme in advance of the vaccinations being rolled out to the general public. The HR Business Partner shared the details of same with the Complainant and informed him that the roll out of vaccinations could help expedite his return to work. The HR Business Partner invited the Complainant to attend the vaccination roll out and he advised that he would speak to his GP regarding same but the Respondent received no further communication from him throughout January.

In February 2021, the Complainant disclosed that he was not comfortable returning to work whilst Covid 19 was still a risk and therefore did not expect to return. As health guidance available stated that Covid-19 could impact everyone for the foreseeable future, the HR Business Partner sought advice on the matter. Around this time on a phone call with the HR Business Partner, the Complainant confirmed that his cancer had returned and stated that his condition was serious and that he required surgery in the near future.

At that juncture considering the Complainant’s suggestion that he would not be returning to work for the foreseeable future, the HR Business Partner made representations to explore other options to support the Complainant and the option of a goodwill gesture with a compromise agreement was explored.  The HR Business Partner was advised that she could share this with the Complainant and the scope of the agreement was explained in detail during phone calls and he responded positively to this and seemed appreciative. The compromise agreement was prepared and issued to the Complainant with a monetary gesture of €5,000.   The HR Business Partner and the Complainant agreed that they would make arrangements to have the form signed and that the HR Business Partner would then issue the cheque.

Following this, there was no contact from the Complainant for a number of weeks until a letter was received on 6 July 2021 wherein he expressed his unhappiness with the agreement and requested a meeting to discuss same.  The Respondent complied with his request and the HR Business Partner alongside the Director of Nursing placed a call to the Complainant on 15 July 2021. On this call, the Complainant disclosed his annoyance at both the letter and gesture of goodwill from the Respondent. The HR Business Partner was surprised by his reactions given their previous conversations. When probed, the Complainant stated that he was annoyed at the size of gesture. It was subsequently explained that it was a goodwill gesture made with compassion because the Complainant had disclosed that his cancer had returned, was facing further surgery and would not be happy to return to work.  The HR Business Partner advised that if he was now fit to return to work however, a medical certificate would be required from the Complainant’s doctor and she could then explore the possibility of his return to work.

On 20 July 2022, the Complainant wrote to the Respondent claiming unfavourable treatment by his employer. The letter also stated that he considered he had been discriminatorily dismissed, and that he intended to refer his complaint to the Workplace Relations Commission.

On 23 July 2022, the HR Business Partner wrote to the Complainant to clarify the Respondent’s position and confirmed that at no time was the Complainant dismissed or laid off from his role, nor was it a redundancy situation. In this letter, the Respondent also outlined that his position was still open, and that the Respondent would do all they could to assist the Complainant on his return to work on receipt of a fit to return certificate.  The Respondent stated that the Complainant is still absent from work and in that regard must submit medical certs and comply with absence procedures.

Section 6 of the Employment Equality Act, 1998, states:

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) 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) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

This complaint is made pursuant to the Employment Equality Acts on the basis that the Complainant was dismissed by the Respondent because he had a disability. 

Disability

The interpretation section of the Employment Equality Acts provides the following definition of disability:

“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 Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“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.”

The effect of s.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the Complainant to show that, based on the primary facts, he has been discriminated against because of his disability.

The Respondent, referred to the explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, which addresses the onerous nature of the burden of proof:

“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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

I note firstly that the Respondent did not dispute that the Complainant had a disability, namely cancer, and I am satisfied that this constitutes a disability under the Act.

In deciding whether the Complainant has discharged the burden of proof as set out in section 85A of the Act above, I must consider the totality of his evidence given at the hearing. In the first instance, I note that it was disputed between the parties regarding whether the Complainant was on sick leave or had been laid off by the Respondent following the onset of the Covid pandemic. While I accept that the Respondent issued the Complainant with a letter in April 2020 which stated that they had no work for him, I note that the Complainant was quarantining prior to this because of his ill health and find on the balance of probabilities that the Respondent issued the letter to facilitate the Complainant's eligibility for the Pandemic Unemployment Payment (PUP). Therefore, I conclude that the Complainant was on sick leave starting from April 2020, rather than on layoff.

Following several conversations between the Complainant and the HR Business Partner between August and November 2020, I note that the Complainant stated that he was fit to return to work in or around November 2020 and that the Respondent stated that he would be allowed to do so if he provided the appropriate fit to return to work certificates. Although the Complainant stated that he furnished the requested certificates to the Respondent in November 2020 and January 2021, the Respondent alleged that they were never received. In addition, I noted the Complainant’s evidence that after he furnished the medical certificates, he made several telephone calls to the Respondent between November 2020 and February 2021 inquiring about a return to work but that the Respondent did not answer or return any of these calls.

Even if I accept that the Complainant furnished the medical certificates and made these telephone calls, as he alleged, and that they were not answered or returned by the Respondent, which I note was disputed by the HR Business Partner in evidence, it is incomprehensible that the Complainant failed to follow up in writing and inform the Respondent both that he had sent in the medical certificates and that he was in fact seeking return to work. In particular, I cannot understand why if the first medical certificate that the Complainant stated he sent to the Respondent in November 2021 was not received, he did not hand deliver the second certificate or send it by registered post or via email to confirm its safe receipt.  

In the absence of any credible evidence to support his assertion that he repeatedly telephoned the Respondent to inquire about a return to work or that he sent in medical certificates to confirm that he was indeed fit to return to work, I prefer the evidence of the Respondent and find that the Complainant made no efforts to return to work or provide any evidence that he was fit to do so.

I further note that it was only when the Complainant’s medical condition deteriorated further in February 2021 that the Respondent sought alternative options for him and proposed a package to allow him to exit the business. Given the Complainant’s medical condition at the time, I believe that it was reasonable of the Respondent to make this offer and do not accept the suggestion made by the Complainant that this offer was either discriminatory or constituted his dismissal. In fact, I find that, rather than being treated less favourably because of his disability, the decision by the Respondent to offer him an exit package represented more favourable treatment than someone who did not have a disability would have received and did not therefore constitute discrimination under the Act.  

I further note that the Complainant decided of his own volition to refuse this offer, as was his right, and find that because of his refusal to accept it, his employment with the Respondent was not terminated, despite his assertion to the contrary. In fact, I note that it was not disputed that the HR Business Partner once again advised him, after he refused the exit package, that he could return to work when a medical certificate confirming that he was fit to do so was provided by his GP.

Considering all of the foregoing, I find that the Complainant has failed to establish a prima facie case of discrimination and that he was therefore not discriminated against by the Respondent.   

I find that the Complainant failed to establish a prima facie case of discrimination and that he was therefore not discriminated against by the Respondent.