FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : BERKELEY COURT HOTEL, DUBLIN (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MS. G (REPRESENTED BY MURRAY FLYNN MAGUIRE SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of the Employment Equality Act, 1998 - Dec-E2004-035.
BACKGROUND:
2. A Labour Court hearing took place on the 25th of January, 2005, in accordance with Section 83 of the Employment Equality Act, 1998. The following is the Court's determination:-
DETERMINATION:
The complainant referred a claim to the Director of Equality Investigations on 13th March 2002 to the effect that she had been discriminated against on the grounds of disability by the respondent contrary to the provisions of the Employment Equality Act, 1998.
The case was heard by an Equality Officer on 8th April 2004. Before dealing with the substantive issue, the Equality Officer dealt with a question raised by the respondent that the date of the allegedly discriminatory issue was more than six months before the referral of the claim and that therefore the Equality Officer did not have jurisdiction to consider the substantive issue.
The Equality Officer found that the date of the alleged discrimination was prior to, but no later than 23rd April 2001, and that this occurrence also constituted the last alleged occurrence of discrimination. As this date was more than six months prior to the referral of the complaint and since no application was made on the complainant's behalf to the Director of Equality Investigations for an extension of the six month time limit under Section 77(6) of the Act, the Equality Officer found, on 15th June 2004, that the complaint was referred outside the time limit stipulated in Section 75 of the Employment Equality Act, 1998, and that she had therefore no jurisdiction to investigate the substantive claim.
This decision was appealed to the Labour Court on behalf of the complainant on 20th July 2004 and the appeal was heard by the Court on 25th January 2005.
Complainant’s Case:
1. The complainant was employed since 1986 as an Accommodation/House Assistant by the respondent. On the 8th May 2000, she went absent on sick leave due to a stress-related illness. In April 2001 while still on sick leave, she was examined by a consultant psychiatrist who advised that she was well enough to resume work on a trial basis, but who noted that she had a hiatus hernia which "may well " be aggravated by bending or stooping over.
2. The respondent advised the complainant’s Trade Union, which had been agitating for her return to work, of the result of the above mentioned medical examination. In a letter to the Union on 2nd May 2001, the respondent advised that it had taken further medical advice which had pointed out that her job, which involved stooping and/or bending, could pose a risk of exacerbating her medical condition (hernia). The respondent went on to say as follows:
- “As you will appreciate, as an employer we have a duty of care, which recognises that we do not place (the complainant) in a position which poses a health risk to her. Having now been made aware of her condition, which she herself confirmed exists, we cannot ignore the potential consequences of her returning to her position of house assistant.
As stated earlier, we are genuinely eager for (the complainant) to return to the workplace in the right circumstances. To that end, we are still prepared to offer (the complainant) alternative suitable work until such time as she is deemed fully fit to return to her contracted position. We have been unable to identify a suitable position in housekeeping but have identified two positions either in the staff restaurant or in the stillroom. This offer is available immediately and affords (the complainant) the opportunity of returning to work with her medical condition”.
5. It was argued that the Equality Officer erred in law and in fact in holding the complaint to be time-barred in that:
- “The 1998 Act provides that in equal treatment cases that a claim for redress in respect of discrimination or victimisation must, outside of exceptional circumstances, be referred before the expiration of six months from the date of the occurrence, or the most recent occurrence as the case may require."
It was submitted that this case was referred within the time limit set down by the Act in Section 77(5). The dates of the most recent occurrences of the discriminatory acts complained of also, of necessity, included the manner in which the negotiations for the return were handled by the respondent. The offer accepted by the claimant for a return to work was made by letter dated October 30th, 2001 and reiterated by letter dated November 28th, 2001. That offer was accepted by the complainant. It is clear that these events occurred well after September 14th 2001. These events, by definition, governed the return to work.
In addition to the above it was submitted that the discrimination suffered was and is continuing in nature. The complainant was entitled to challenge the proposed conditions of return and to seek assurances in that regard, particularly in the light of previous behaviour of the respondent. The discrimination inherent in the return to work continued after her return as it was inherent in the conditions thereof. Evidence of this comes from the claimant’s concerns regarding her return, which also related to the terms and conditions thereof.
Reference was made to the decision of the Labour Court in the case ofCitybank v Ntoko (ED/01/13 Determination No. 045) where it was stated in relation to the burden of proof: -
“Flexo Computer Stationary and Colton"is but one in a line of decisions of this Court which held that where a complainant establishes facts from which discrimination may be inferred it is for the respondent to prove that there has been no infringement of the principle of equal treatment. The Court normally requires the complainant to establish the primary facts upon which the assertion is grounded. If those facts are regarded by the Court as being of sufficient significance to raise an inference of discrimination, the respondent must prove the absence of unlawful discrimination (seeMitchell v Southern Health Board [2001] ELR 201)
This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof.”
1. The complaint of discrimination on the disability ground made by the complainant was lodged on 13th March 2002.
- Section 77(5) of the Act states that:
“A claim for redress in respect of discrimination or victimisation may not be referred under this Section after the end of the period of 6 months from the date of the eccummence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates”.
The respondent does not accept either
(a) any allegation of discrimination. The Complainant was employed as a House Assistant. This job involves cleaning and tidying bedrooms. In the course of an examination of the complainant by a consultant under a different medical discipline, it was discovered that she had a medical condition which could be exacerbated by the bending, lifting and stretching involved in her work. For health and safety reasons, therefore, the respondent did not allow her to return to the post of House Assistant. It did, however, offer her a suitable alternative position in the staff restaurant, which she ultimately accepted.
(b) that the complainant referred her case within the stipulated 6 months’ time limit set down in the Act – as she referred the case on March 13th 2002, any act predating September 13th, 2001 is outside the time limit set down in the Act.
The respondent made the decision not to allow her return to work as a House Assistant when it received the consultants report in 2001. The decision was confirmed in writing to the complainant on 2nd May 2001.
Her complaints all relate to the decision taken in April 2001. Her claim was not lodged for a further 11 months.
In the case ofA Complainant v National Training and Development Institute (DEC-E2002-037)an Equality Officer concluded that:
“Retention of the original Decision does not constitute a new decision”.
Therefore the complaint was clearly lodged outside the time limit. No application to extend this limit was made under the Act.
Determination:
The Court notes that the Equality Officer made no decision on the substantive matter at issue (discrimination on grounds of disability). It would therefore be open to the Court, should it find the complaint within time limit, to refer the substantive matter back to the Equality Officer.
It is clear that the decision not to return the complainant to her original position, thus giving rise to the claim, was made in April 2001. This decision was crystallised by the letter of 2nd May 2001 conveying the decision and offering her alternative employment.
Lengthy argument took place between the respondent’s solicitors and solicitors and Trade Union representatives on behalf of the complainant as to the probity of the respondent’s position, and offer, the nature of the alternative work offered etc. until the complainant agreed in December 2001 to take up the alternative work, which she did on 11th January 2002.
The complainant argues that only when she returned to work in January 2002 and discovered that her average aggregate earnings were lower than in her previous position did she discover that she had been discriminated against.
While this may indeed be so, it represents the tangible result of an alleged act of discrimination, not the act itself.
It is the view of the Court that the act occurred when the decision of the respondent was confirmed by letter to the complainant on 2nd May 2001. This is clearly outside the six month time limit and with no extension sought, the Court therefore dismisses the complainant’s appeal.
Signed on behalf of the Labour Court
Raymond McGee
21st February, 2005______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.