Complainant

Respondent

Parties

Margaret  Dunne

Dr Declan Scanlon  

Representatives

South Leinster Citizens Information Service

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-00048574-001

09/02/2022

The Complainant was engaged by the Respondent and before him  his late father as a receptionist for the medical practice they operated in Tullamore, Co. Offaly.

She gave the date of commencement for employment as 7 April 1973.

The data her employment ended was 28 October 2022 due to closure of the practice.

She was in continuous employment in the Respondent’s medical practice for practically 50 years.

The medical practice closed due to the Respondents ill-health.

Despite various attempts by the WRC to contact him, he did not attend the hearing.  The WRC was able to notify a member of the Respondent’s family of the complaint and gave the Respondent an opportunity to attend the hearing or appoint a representative to do so on his behalf.

The Complainant advised that her gross weekly wage was €473.

She gave evidence that on medical advice she remained at home due to concerns about COVID-19 from the 13 March 2020.

The Complainant gave a timeline of the events which took place between the 13 March 2020 and 5 January 2022.

The Complainant was requested by her consultant to remain at home at the outbreak of COVID-19 on the 13 March 2020. This was agreed to by the Respondent.

On the 19 May 2021 she sent a text to the Respondent advising him that she was in a position to return to work and requesting a return to work date.

On the 21 May 2021 she sent a follow-up text to the Respondent.

She received a reply from the Respondent stating that he required her to have a checkup prior to returning to work. On that same day she received a telephone call from the secretary of a consultant in Tullamore Hospital requesting her attendance for a checkup the following day. The Complainant requested information and details on the checkup process and pointed out the short notice. She did not attend the appointment.

On the 24 May 2021, the Complainant contacted the Respondent requesting information regarding the purpose and reasoning behind the proposed check up with the consultant.

The Respondent replied stating that no routine checkup had been actioned in the previous six months.

On the 21 June 2021, the Complainant texted the Respondent requesting a return to work date. The Respondent replied requesting her permission to refer her to occupational health. The Complainant Respondent gave her consent. This was the last communication that the Complainant received from the Respondent.

On the 12 October 2021, the Complainant's representatives wrote to the Respondent requesting her return to work date. No response was received.

The Complainant filed her complaint with the WRC on 9 February 2022.

The Complainant was advised by a colleague that the Respondent’s medical practice was closing on 28 October 2022.  The Complainant submitted that she was in employment with the Respondent up until the closure of his medical practice.

The Complainant's case was that she was treated less favourably on grounds of her age in breach of the Employment Equality Acts. She gave evidence that when she was absence from the workplace on medical advice, she was replaced by two younger employees and identified their names.

Her case is that she sought to return to work and from this request the Respondent had minimal engagement with her and later ignored her correspondence and effectively kept her out of the workplace until the practice closed in October 2022.

As a result of being kept out of the workplace, the Complainant submitted that she incurred significant financial loss. Prior to the closing of the Respondents practice she sought to return to the workplace and continue with her career.

The Complainant submitted that she was fit for all required duties as receptionist and there was no reason why she should not return to the workplace following the medical advice that she was fit to do so.

The Respondent did not attend the hearing.

The Complainant submitted a complaint to the Workplace Relations Commission on the 9 February 2022 that she was discriminated against by the Respondent on the basis of the treatment she received.

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 discriminated by the Respondent because of her age.  The Complainant removed herself from the workplace at the start of the Covid pandemic on the basis of medical advice and with the consent of her employer. She did not resign from her position.

While on leave, the Respondent engaged two younger receptionists, aged in their 40’s.  The Complainant was 65 at the time.

When the Complainant was able to return to the workplace, the Respondent effectively ignored her following a minor initial engagement.

The Burden of Proof

The Equality Act 2004 inserted 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 was on the Complainant to show that, based on the primary facts, she has been discriminated against because of one or more of the grounds outlined in the Act.

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 is also helpful:

“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

As per s.85A of the Act, the onus to prove that discrimination occurred rests with the Complainant in the first instance. Having considered the evidence presented to me both in writing and orally by the Complainant, I find that there are facts that give rise to an inference of discrimination. The Complainant has established that she was replaced by two younger members of staff while on authorised leave and when she sought to return to the workplace, the Respondent avoided taking her back to work when she was assessed by her own consultant as medically fit to do so. She has therefore established a prima facie case of discrimination for the purposes of this Act.

As there was no attendance for the Respondent and no documentary evidence as to a contract of employment or of a compulsory retirement age in the medical practice, and the Respondent failed to comply with the Code of practice on Longer Working Declaration Order 2017 (under the 1990 Industrial Relations Act) I have limited information to assess his position on the complaint.

While there may have been a legitimate objective to the Respondent’s requirement to have the Complainant medically assessed prior to her return to the workplace, the lack of engagement or communication following same was unexplained apart from what inference I can make myself on hearing of the Respondent’s subsequent ill health and ultimate closing of the medical practice. 

Nevertheless, the fact remains that the prima facia findings have not been rebutted by the Respondent and on the uncontroverted evidence of the Complainant I find that she has been discriminated on the grounds of her age.

While the Complainant had reached the age of entitlement to a state pension, the failure of the Respondent to allow the Complainant return to work had a financial impact on her and taking same into account I award the Complainant compensation in the sum of six months gross salary in the sum of €12,000.00.

This complaint is well founded.  I award the Complainant compensation in the sum of €12,000.00.

Refusal to engage on return to work request.  Code of Practice on Longer working.  Age discrimination