EDA2518

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No(s) ADJ-00015204 CA-00019748-001.

BACKGROUND:

The Employer appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 12 May 2023. Labour Court hearing took place on 27 and 28 November 2024.

The following is the Determination of the Court:

DETERMINATION:

1Background to the Appeal

This is an appeal by the Respondent against decision of an Adjudication Officer (ADJ-00000015204 CA-00019748-001 dated 19th June 2023) under the Employment Equality Act 1998 (‘the Act’).  The Respondents Notice of Appeal was received in the Court on 12 May 2023. The Court heard the appeal in Dublin on 2 and 28 November 2024. Additional time was allowed following the hearing for parties to make additional submissions.

There are two complaints before the Court, discrimination on grounds of disability in working conditions and harassment.

The Respondent’s original submission was received by the Court on 23 June 2023 and the Complainant’s on 1 August 2023. The Complainant’s submission dealt with issues as far back as 2015 but did not identify the specific breaches within the reckonable period or identify a comparator.

The Court held a case management conference on 30 April 2024 and the Complainant was afforded an opportunity to make a further submission identifying breaches of the Act in respect of each of her complaints during the reckonable period and to identify a comparator.

The Complainants’ additional subs were due on 21st May 2024 and were received on 17th June 2024.  The Respondent’s responding submissions were received on the 8th July 2024. The Complainant was afforded a further week if she wished to comment on the Respondent’s submission, but she did not avail of that option.

The complaint was lodged with the WRC on 13 June 2018. The cognisable period for the purpose of the Act is 14 December 2017 to 13 June 2018.  The Adjudication Officer upheld the complaint of discrimination on the disability ground and that the Complainant was harassed. Compensation of €50,000 was awarded.

2 Sequence of events

It is not in dispute that the Complainant had a disability at the relevant time.

The following sequence of events were set out as a background to the complaint. An Occupational Health report 26th October 2017 identified the need for the Complainant to carry out restricted duties. However, parts of the report were missing.   The Respondent wrote to Dr W Occupational Health Medmark on 28th November 2017, querying the reference to restricted duties and what that might mean.   In that correspondence the Respondent expressed concern about the fact that a query previously raised about the growing level of absences had not been addressed in the report, and expressing concern about the Respondent’s ability to support the absences. The Board requested a detailed report in relation to the Complainant’s fitness to work, any restrictions in respect of her fitness to work and her ongoing capacity to provide regular attendance.

There was also a separate issue directed by the Department of Education to Medmark for discounting of holidays which was a separate referral and not something the Principal or Board of Management (BOM) were involved with.

 On 22 December 2017, Dr W provided a report noting that the Complainant was currently at work and advising that she had carried out an assessment on 13 December 2017. She confirmed that the query re discounting summer holidays was being dealt with separately.

Dr W stated that in her view the Complainant remained unfit for work and made reference to some particular issues relating to the role of the Complainant.  She went on to state that the Complainant appeared medically unfit to offer satisfactory service and reliable attendance for the foreseeable future.

On 8 January 2018, the Respondent received this report from Medmark and sought advice from the Department of Education. They were informed, that in circumstances where occupational health had stated that the Complainant was not fit for work, she would not be insured to be on the school premises. On foot of that advice the Principal sent the Complainant home and advised that she get a medical certificate from her GP.

On the 16 January 2018 the Complainant got a letter from her GP practice stating that they support her ongoing participation in active employment from a rehabilitation and mental health perspective and on the 20 January 2018 the Complainant got a letter from the Department of Neurology CUH stating that she was medically fit to resume work without restrictions. Neither of these letters were given to the Respondent or MedmarK until mid-March 2018.

On the 31 January 2018 the Respondent wrote to Medmark raising a number of questions and noting that the Medmark report of 22 December 2017 raised more queries than it answered. The letter stated, “We are therefore very anxious to ensure that we have a full and correct understanding of her various medical conditions and whether those render her partially or fully unfit for work.”

On 5 February the Complainant attended another appointment with Medmark and a report arising from same was issued on 20 February 2018. The report was accompanied by another report marked private and addressed to the Chairman of the Board of Management.  The report stated that the Complainant was unfit for work and recommended that a detailed risk assessment looking at the essential tasks the Complainant was required to do be caried out.  The report marked private suggested that the Respondent might like to get a second opinion.

The Respondent replied on 6 March 2018 looking for clarity on the type of risk assessment that was being proposed and how an appeal of the Occupational Health report could be facilitated.

A reply dated 20 March 2018 was received from Medmark and it set out that an appeal could be to another doctor in Medmark. This response crossed with the Respondent’s letter of 23 March 2018 advising that Complainant’s GP and Neurosurgeon indicated that she was fit to attend work 

A medical assessment by a different doctor was caried out on 7 June 2018. The report issued on 14 June 2018, and it recommended that a functional capacity evaluation be caried out.   A functional capacity evaluation was carried out by a specialist who operates in that area and the report was sent to Medmark on 23rd July 2018. This test indicated that the Complainant was not fit to carry out her role at that point in time. The report suggested that the test be carried out in a further six months. In March 2019 a further functional test was agreed. The Complainant attended for same on 7 and 8 October 2019.  A report issued 29 October 2019 confirming that the Complainant was fit for work at that stage.

3Relevant Correspondence

12th January 2018 SIPTU write to employer objecting to Complainant being sent home on foot of Medmark report.

16th January 2018, Respondent responded advising that if the Complainant had conflicting reports from her own doctors, she should submit them and that Medmark may need to liaise with her GP.  In the meantime, she remained certified by Medmark as unfit for work.

7th February 2018 Employer sent reminder letter to SIPTU in respect of their letter of 16 January 2018 to which they had not received a reply.

14 February 2018 SIPTU wrote looking for a meeting on behalf of the Complainant with the Board of Management.

23 February 2018. Respondent replied advising that at next Board of Management meeting her request would be considered.

26 February 2018 SIPTU responded advising Complainant wanted the meeting with the Board of Management to discuss her grievances.

Letter of 5th March 2018 to SIPTU from the Respondent advising a second medical assessment by a different Doctor could be carried out if she disputed the Medmark reports.  The letter also advised of the correct procedures for raising a grievance and that the Chairman and principal were available to meet with her as an alternative to the formal grievance procedure.

14 March 2019 SIPTU confirmed attendance at the meeting scheduled for 15th March 2018 with the Chairman of the Board of Management and the Principal.

23 March 2019 the Respondent wrote to the Union noting that doctors’ reports were only provided to the Respondent at meeting of 15th March 2018 despite being dated January 2018.

4 Summary of Complainants submission

It was the Complainant’s submission that she was discriminated on the grounds of disability and that she suffered harassment. Her Union representative made detailed submissions covering a number of years of issues that the Complainant believed constituted discrimination and or harassment. Both parties accepted that the existing case law required that in order for the Court to look at incidents outside of the reckonable period the Complainant in the first instance, would have to establish that there was a breach during that period as set out in the statute. The Complainant’s representative in a supplemental submission received on 17 June 2024 identified the following thirteen acts of discrimination and harassment during the relevant period.

1) The employer received documentation regarding the discounting of summer holidays dated 19th December 2017 which is directly related to referral to Medmark which was made by school principal on 27th November 2017. The leave was not discounted a sick leave.

2) Principal received Medmark report dated 22nd December 2017 on 8th January 2018 even thought there was no referral, and report was outside of standard practice

3) In receiving the report dated 22 December 2017 on 8 January 2018 Principal knew it was a month old. On foot of the report the Complainant was sent home from work.

4) On 8 January 2018 the Complainant was sent home from work and directed to attend her GP even though she did not feel unwell.

5) Principal did not correct Medmark report in terms of the inaccurate information about the Complainant working with wheelchair users.

6) A request to meet with Board of Management was made on 19 February 2018 and response received on 23 February advising request would be considered at next Borad of Management meeting on 21 March 2018.

7) The Complainant was aggrieved by the way she was referred for a discretionary assessment in December 2017 and the ordered to go home on 8 January 2018.

8) A grievance meeting took place with the Complainant on 15th March 2018 the Complainant believes she was given false information about the reason for the December 2017 referral to Medmark

9) 17/18 April 2018 the Union requested that the Complainant be referred back to Medmark

10) 27 April 2018 outcome of grievance did not provide a right to appeal.

11) Management failed to apply the absence policy correctly

12) At further assessment on 7 June 2018, the Complainant discovered that the job description Medmark were working off did not accurately reflect what she did non a day-to-day basis.

13) The Chairperson in April 2018 called to her house to deliver documents and repeatedly rang the bell before posting the documents through her letterbox.

The Union representative submitted that the comparator for all these discriminatory acts set out at 1 to 12 above as any other employee/ member of staff who they submit would have been treated differently to the Complainant.  The Complainant identified one act of harassment that being when the Chairperson called to her house.

5 Summary of Respondents submission

Mr Faughnan BL on behalf of the Respondent submitted that the Complainant had persisted in failing to make a discrimination case at all. It is accepted that the Complainant had a disability. However, all of the matters complained about concern management of her absences and or fitness for work. No evidence of any differential treatment has been put forward. Mr Faughnan BL noting the Complainants supplemental submission notes that it refers to a number of episodes however not all are specifically identified as being discriminatory. It was his submission that there appeared to be seven alleged acts of discrimination during the relevant period.

In respect of allegation 1 set out above discriminatory referral to Medmark on 27th November 2017 and the school receiving documentation regarding the discounting of summer holidays on 19 December 2017, this has nothing to do with the school. The discounting of summer holidays is a matter wholly for the Department of Education.

Allegation 2 receipt by the school of Medmark report on 8 January 2018. The Complainant had been provided with a copy of Medmark report 26 October 2017 which indicated that she was fit to work with restrictions but did not identify what restrictions. The school sought clarification on same and the Complainant continued to work while the clarification was sought.  On the day the school reopened after the Christmas break the Medmark report was received, and it indicated that she was not fit to work. The school had no option but to act in accordance with same. The Complainant does not identify a comparator that had or would be treated differently other than making a general statement that the school breached procedure for this employee but not for others.

Allegation 3 sending the Complainant home on 8 January 2018. The Complainant is submitting that it was not reasonable for the Respondent to send home someone who was medically certified as unfit for work. The Board of Management had to act on the medical report it received and the advice it received from the Department of Education. In respect of a comparator the Complainant states any other member of staff in this scenario would have remained in work. This is not the case and no evidence to support that statement has been forthcoming.

Allegation 4 refusal to meet the Complainant and her representative.  This is untrue and is contradicted by correspondence, in particular a letter from her Union confirming a meeting with the Respondent on 15 March 2018.

Allegation 5 Failure to provide an appeals process from the grievance procedure. The Complainant was afforded an opportunity to process her complaint through the formal grievance procedure which provides for an appeal. However, she opted instead to have an informal meeting with the Chairman of the Board and the Principal. This is all recorded in the exchanges of correspondence between the parties.

Allegation 6 Failure to re-refer the Complainant to Medmark in April 2018. This is factually incorrect. On 30 April 2018 in accordance with the policy a non-discretionary referral in respect of the Complainant was made to Medmark.

Allegation 7 Failure to provide an accurate account of her working duties. The Complainant is employed as an SNA. The duties provided to Medmark were a list of SNA duties that were compiled by staff in the school and reflected the range of SNA duties that she could be assigned to.

In respect of the alleged act of harassment whereby the Chairman of the BOM called to the Complainant’s home to deliver some documents that she had requested through a data request. The day the documents were delivered was the final day for delivery of same as provided for under Data Protection legislation. As confirmed by the Complainant she did not answer the door, so he dropped them in the letter box. It is not clear from the Complainant’s submission how this action is linked to her disability or how it constituted harassment as defined by the Act. The Complainant has failed to identify acts of discrimination that could raise a prima facia case of discrimination she has also failed to identify any comparator.  On that basis her complaint must fail.

6 Complainants evidence

The Complainant in her evidence stated that she had a procedure during the summer of 2017, and she believed the principle had instigated the procedure for discounting summer leave in respect of that procedure. She was in work from September to Christmas 2017 and finished up on 22 December 2017 for Christmas break. She returned to work on 8 January 2018. At 1.15pm she was asked to go to the office to talk to the Principal where she was told Medmark had said she was unfit for work, and she would have to go home. She was informed that she would be on full pay, and it would take a few weeks to sort out. She was not shown the Medmark letter by the Principal at that time. The Complainant confirmed that she had been to Medmark on a few occasions between October 2017 and December 2017. It was her evidence that she disagreed with the content of the Medmark report of 22 December 2017. The Complainant stated that it suggested that she could not work with children in wheelchairs and that was not true.   She also stated that at one of the meetings with Medmark the Doctor read an email about her sweating, the Complainant confirmed that she had submitted a data request to Medmark.

It was her evidence that her next assessment with Medmark was in February 2018. The Doctor had a list of duties for each of the classes in the school. This was the first time she saw that list.  It was her evidence that the document was put together by each classroom for a different purpose.

The Complainant accepted that if you are absent for 20 days it is an automatic referral to Medmark and accepts that there is a procedure for referrals. The Complainant stated that she never used the grievance procedure and did not know about it and was never given a copy of the procedure. The Complainant confirmed that she had made a data access request to the school.  In April 2018 the doorbell rang, and it was the chairman of the Board. She did not answer it and he eventually put a letter into the letterbox. She confirmed that she lived quite close to her workplace, but she did not believe that the Chairman should know where she lived.

Under cross examination by Mr Faughan BL the Complainant accepted that there are procedures for referral to Medmark She also accepted that her terms and conditions are covered by Department of Education guidelines, she is paid by the Department of Education and that the Department of Education makes the decision in respect of discounting annual leave and its not a matter for the school. The Complainant stated that she told the Principal about getting a lumber puncture and she believes that the principal told the department.   It was put to her that there was no truth to that statement and that she had no evidence to support it.

The Complainant accepted that the referral on 17 October 2017 to Medmark was a mandatory referral.  She accepted that she told the doctor that the classrooms were hot, and she discussed sweats and walking at the review on 24 October 2017. The Complainant accepted that the Medmark report dated 22 December 2017 stated that she was not fit for work and that the school had to send her home on foot of that report and therefore it could not be discrimination. In terms of the duties documents she stated the document was created because they were looking for additional staff and was created by all staff and it contained a wider range of duties that she actually caried out. The Complainant confirmed that she accepted that she has a liability for the full range of duties and therefore Medmark would need to know the full range of SNA duties.

The Complainant accepted that the first functional test found her unfit for work. The Complainant accepted that there is a time limit under the Data Protection act for the school to provide the information and the day the Chair dropped the documents to her house was the last day. The Complainant confirmed that she accepted that he was trying to deliver documents.

In respect of not been given an appeal for her grievance she accepted that she received a letter of 5 March 2018 asking if she was invoking the formal grievance procedures and she had not confirmed that she was. She accepted that she had engaged in an informal process outside of the grievance procedure.

7 Evidence of the Principal for the Respondent.

The Principal explained how the Medmark referral system worked, the school input the absence details into the system which is co-ordinated by the Department of Education after twenty-eight days absences the systems flag a referral to medmark which is done online.  The referral in October 2017 was a non-discretionary referral, and the referrals of 19 January 2018 and 30 April 2018 were non-discretionary. The Principal confirmed that this was the first time she had received a Med mark report that said an employee was unfit for work.   It was her evidence that the school only got the full October 2017 Medmark report in February 2018.

The Principal confirmed that she did not contact the Department about the Complainant’s summer absence she had no reason to.  When she received the Medmark report after the Christmas holiday stating that the Complainant was unfit for work, she sought advice, contacted the insurance company and was advised that the Complainant could not remain on the premises if she was medically certified unfit for work.  The Principal confirmed that she received the Complainant’s doctors report in March 2018 and sent them on to Medmark and sought advice as to what she should do.

The Principal confirmed that she was not aware of any situation whereby a member of staff was deemed medically unfit for work and left in work. She confirmed that the Complainant had not opted to use the formal grievance procedure which would have offered her an appeal process, instead she opted to having an informal meeting with the Principal and the Chairman of the Board.   The Complainant’s Trade Union representative attended the meeting with her.

The document containing the list of duties which was sent to Medmark was part of the school plan that has all duties written down. It is a living document which was written by all of the SNA’s. The role of SNA had changed dramatically since the Complainant started work.

In respect of the Complainant’s data request the Principal’s evidence was that herself and the school secretary gathered the relevant information. It was the Friday of the Easter holidays and herself, and the school secretary had a lot to do they were discussing how to get the documents to the Complainant as the school was going to be closed for two weeks. The Chairman of the Board   was present, and he offered to drop it into the Complainant’s house. The Principal confirmed that the grievance procedure is available to all staff and is contained in the school policy folder.

8 Evidence of the Chairman of the Board

The Chairman informed the Court that he had held the position of Chairman of the BOM since 1 December 2011. He stated that following on from a mandatory referral in October 2017 he had seen the report from Medmark. However, it was not clear from the report what restrictions to the Complainants duties were to be applied. The BOM sought clarity in respect of this. He confirmed that as Chairman of the BOM he wrote to Medmark on 28th November 2017 looking for a detailed report about the Complainant’s fitness to work. He confirmed that the BOM were aware that the Complainant was sent home on the 8 January 2018, and he did not believe that was an unreasonable thing to do. Towards the end of February 2018, they were asked by Medmark to supply a detailed list of tasks that were regarded by the school as essential to the role of SNA and they provided same. The Chairman confirmed that the Board followed the advice from Medmark in respect of the Complainant’s fitness for work. The school paid for the functional capacity evaluation that was carried out and determined that she was not fit for work and for the further evaluation a few months later that confirmed that at that stage she was fit to carry out her duties.

In respect of the Data Protection documents he happened to be in the school on the day and as it was the final date as prescribed by the Act to provide the documents to the Complainant, he volunteered to deliver them to her house.  He accepted that it was not normal practice to drop documents to someone’s house. However, the school was closing for the Easter break, and he wanted to ensure they were complying with the statutory deadlines. He stated that he rang the doorbell and waited about ten minutes before putting the documents in the Complainants letter box. The Chairman confirmed that he met the Complainant with her Union representative and the Principal in March 2018.

9 Evidence of Medmark Doctor

Doctor W confirmed that the referral of 13 October 2017 was non-discretionary she confirmed that she would have observed the Complainant as she brought her from the waiting room to the examination room. She accepted that the report the school received in October did not elaborate on the nature of the restrictions that should apply to the Complainants duties. In respect of the issue raised by the Complainant about the list of duties and who she could work with, it was the Doctor’s understanding that the Complainant had stated that she could not work in classes with wheelchair users.  The Doctor confirmed that the Functional test was carried out by an expert in that field.

10 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”.

11 Discussion and Decision

The Court finds, based on the submissions and the evidence it heard, that the Complainant has not established a prima facie case of discrimination on the disability ground and/ or harassment. The Complainant has identified a number of   issues where she was not happy with how the Respondent handled her absence from work arising from the certification by Medmark that she was unfit for work.  A number of the issues the Complainant raised in her supplemental submission of 17 June 2024 she accepted under cross examination were not in the gift of the Respondent, or were contradicted by correspondence i.e the issues pertaining to the grievance procedure and the discounting of summer leave.

The Complainant was unable to link any of the issue she raised to her disability or identify a comparator who had been treated differently. The mere fact that the Complainant falls under one of the protected grounds is not sufficient in and of itself to establish a prima facia case of discrimination.  As stated by this Court previously in Melbury Developments Ltd v Valpeters [2010] ELR 64,  “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Taking all of the above into account the Court upholds the appeal. The decision of the Adjudication Officer is set aside.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
TH	______________________
10th March 2025	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.