EDA257

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00032998 (CA-00043612-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 16 October 2024.

The following is the Determination of the Court:

DETERMINATION:

This matter comes before the Court as an appeal by Louisa Higgins (the Appellant) of a decision of an Adjudication Officer given in her complaint under the Employment Equality Act, 1998 to 2015 (the Act) against her former employer Analog Devices International (the Respondent). The Appellant complains that the Respondent discriminated against her on grounds of her disability.

The within complaint was made to the Workplace Relations Commission on 16th April 2021. The Appellant previously made complaints to the Workplace Relations Commission in November 2015 and in November or December 2017. That latter complaint was identical to the within complaint in that it alleged:

• That the Respondent had discriminated against her on grounds of disability
• That the Respondent failed to provide reasonable accommodation in light of her disability
• That the Respondent discriminated against her in relation to her conditions of employment.

The Adjudication Officer decided on 31st October 2019 that the complaint was not well founded. The Appellant appealed that decision to the Court in November 2019. That appeal was struck out by the Court on 22nd January 2021 in accordance with the provisions of the Act at Section 102(2)(b) on the grounds that it appeared to the Court that the Appellant had not pursued, or has ceased to pursue, the matter. The decision of the Adjudication Officer dated 31st October 2019 thus became final.

The within complaint was made on 16th April 2021 and consequently concerns alleged acts of discrimination occurring between 17th October 2020 and 16th April 2021.

The Complainant contends that the conduct of the Respondent in failing to provide her with reasonable accommodation in that period amounted to unlawful discrimination. This complaint is identical to the Appellant’s complaint, finally determined to be not well founded, made in 2017 that the failure of the Respondent to provide her with reasonable accommodation in the cognisable period for that complaint amounted to unlawful discrimination.

The Appellant clarified when requested by the Court to do so that the alleged acts of discrimination which occurred in the cognisable period for the within complaint were:

• That she was not given a copy of the Health and Safety policy of the Respondent in that period
• That she was not formally risk assessed in that period.
• That she never met the Health and Safety Officer of the Respondent in that period.
  
  

Relevant law

Discrimination for the purposes of this Act.

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,

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

(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”),

(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.]

(4) In subsection (3)—

16.—(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;]

Summary submission of the Appellant

The Appellant submitted extensive detail as regards events occurring after the making of her complaint to the Workplace Relations Commission in 2021 and as regards events dating from before 17th October 2020. The Appellant’s written submission to the Court did not address her complaint under the Act but focussed instead on her complaint under another enactment.

The Appellant submitted in oral submission that the events occurring in the cognisable period for the within complaint were that :

• She was not given a copy of the Health and Safety policy of the Respondent in that period
• She was not formally risk assessed in that period.
• She never met the Health and Safety Officer of the Respondent in that period.

The Appellant made no submission oral or written clarifying how any of these alleged events constituted discrimination on grounds of her disability within the meaning of the Act. The Appellant proffered no submission setting out a comparator for the purposes of advancing her complaint. The Appellant did offer to have her brother give evidence as regards the subject of risk assessment as a function or practice. She asserted that he was an expert in that area.

She clarified when asked that her brother would not be in a position to give evidence as regards any of the matters at issue in the appeal before the Court that were within his direct knowledge. The Appellant’s brother did not give evidence before the Court and the Appellant chose not to give evidence herself.

Summary submission and evidence of the Respondent

The Respondent made substantial written submissions setting out the history of the employment of the Appellant and including various medical assessments conducted before the cognisable period for the within complaint and after the complaint had been made.

The Respondent submitted that the within complaint was made on 16th April 2021 and that the Appellant, in setting out her complaint at that time, specified that the most recent act of discrimination occurred on 18th October 2017. Any complaint made in 2021 alleging discrimination occurring in 2017 was made outside statutorily permissible time limits.

The within complaint cannot be proceeded with on the principal of res-judicata, as the matters complained of have already been the subject of a decision of an Adjudication Officer which became final following the strike out the Appellant’s appeal of that decision by the Court. The decision of the Adjudication Officer related to a complaint made in 2017 which was identical in terms of the stated complaint to the terms of the within complaint. Both complaints asserted that

• The Respondent had discriminated against the Appellant on the basis of her disability
• The Respondent failed to provide reasonable accommodation in light of her disability
• The Respondent discriminated against her in relation to her conditions of employment.

The Appellant is not entitled now to resurrect her appeal to the Labour Court of the decision of the Adjudication Officer made in respect of her complaint made in 2017.

The Appellant has not made out a prima facie case that she suffered discrimination on the grounds of disability.

Discussion and conclusions.

The complaint of the Appellant before the Court relates to events occurring in the six months before 16th April 2021. Specifically, the Appellant in oral submission to the Court, given in the absence of a written submission to the Court addressing her complaint under the Act, is founded on assertions that in the cognisable period for her complaint she was not provided with a copy of the health and safety policy of the Respondent, did not meet the health and safety officer of the Respondent and she was not risk assessed.

The Court is satisfied that it gave the Appellant a full opportunity to outline how these alleged failings on the part of the Respondent amounted to discrimination against her within the meaning of the Act on the grounds of her disability.

The Court was given no basis to conclude that the alleged failings of the Respondent amounted to unlawful discrimination within the meaning of the Act during the cognisable period for the within complaint.

The Court therefore concludes that the Appellant has failed to discharge the burden resting upon her to establish facts from which it might be inferred that she may have been subject to unlawful discrimination.

Having reached that conclusion, the Court need not address that the contention of the Respondent that the within complaint was made outside permissible time limits or that it is res judicata.

Decision

The Court concludes that the within complaint of the Appellant has not been made out and her appeal must consequently fail.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
8th January 2025	Chairman

NOTE

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