THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 140
Mr Michael Moloney
(represented by FH O'Reilly & Co., Solicitors)
MJ Clarke and Sons Ltd
(represented by McDowell Purcell, Solicitors)
File Reference: EE/2007/496
Date of Issue: 19th July 2010
1.1. The case concerns a claim by Mr Michael Moloney that MJ Clarke and Sons Ltd discriminated against him on the ground of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998 to 2008, in terms of conditions of employment, discriminatory dismissal, victimisation, victimisatory dismissal and failure to provide reasonable accommodation to a person with a disability.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 28 September 2007. A submission was received from the complainant on 3 December 2008. A submission was received from the respondent on 28 August 2009. On 1 February 2010, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. A second, expanded submission was received from the complainant on 20 April 2010. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 16 June 2010. Additional evidence was requested from the respondent at the hearing of the complaint and was received on 7 July 2010.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that he is profoundly deaf. He was employed by the respondent as a carpenter from May 1978 until 1 June 2007. His communications with his colleagues and the respondent were in writing.
2.2. In early 2002, the complainant sustained injuries and psychological trauma as a result of a fall from a roof. He was on sick leave for three months, then returned certified fit for work, but with a caveat that this could change along with his medical prognosis. Prior to 2006, the complainant had sufficient work that it was not necessary for him to work on roofs.
2.3. According to the complainant, when he was asked to work on a roof in December 2006, he realised that he had suffered psychological scarring from his accident. On the sole previous occasion where he had worked at heights, he had only noticed a heightened anxiety which disappeared upon return to ground level.
2.4. The complainant contends that when he tried to explain his difficulties to his foreman, he was told to "go home or work on the roof". The following day, the complainant produced a certificate from his GP which stated that: "Mr Moloney suffered a fall at work in the past, which has left him psychologically scarred, preventing him from working on roofs."
2.5. In the following days, the complainant attempted to return to work, but was sent home. On 21 December 2006, he received a letter from the respondent, which asked him to furnish a medical certificate to confirm that he was fit for all aspects of work in his role; and that he would be required to undergo an independent medical examination with a doctor nominated by the respondent's insurance company. The letter also acknowledged that the complainant was willing to work.
2.6. The examination report by the nominated Specialist Occupational Physician stated that the complainant was "medically fit for his previous work but that his symptoms precluded him from working on an exposed or sloping platform without appropriate safety barrier [sic] and safe access and egress in place." It recommended that the respondent conduct a risk assessment of the tasks that the complainant was required to do in the course of his work.
2.7. According to the complainant, this recommendation was not implemented, and the complainant was advised that the respondent regarded the medical report as inconclusive. The relevant letter from the respondent further stated that it was not possible to "accommodate personal preference in allocating people to jobs" and that it would "deem unfair if that employee was given preferential treatment."
2.8. On two further occasions, on 31 March 2007 and 25 May 2007, the respondent wrote to the complainant asking him whether he was fit to return to work, and if so, that he should resume the job he had held with the respondent for nearly 30 years. According to the complainant, no risk assessment was carried out, and he could not be sure that his disability would be accommodated. Accordingly, the complainant wrote to the respondent to furnish him with a reference, to enable him to seek alternative employment. On 1 June 2007, the respondent issued the complainant with a P45 and P60, confirming the termination of the employment.
3. Summary of the Respondent's Written Submission
3.1. The respondent denies discriminating against, refusing reasonable accommodation to, discriminatorily dismissing, or victimising the complainant.
3.2. The respondent acknowledges receiving the notes from the complainant's GP about the complainant's psychological problems with working on roofs. It states that due to its duty of care towards the complainant, it was decided that the complainant would need to undergo an independent medical examination before the complainant could return to work. According to the respondent, it was necessary to write to the complainant twice before the complainant made arrangements to attend the nominated doctor in February 2007.
3.3. The medical report received by the respondent concluded that the complainant was medically fit to work on a scaffold, provided there was an appropriate safety barrier and safe access and egress in place.
3.4. Following receipt of the report, the respondent wrote to the complainant stating that it would never ask anyone to work on a scaffold without the necessary safety precautions in place. The respondent further stated to the complainant that it would "try to deal with the situation to find a resolution". The respondent wrote to the complainant twice subsequently, asking him to report back to work if he was medically fit to do so. The respondent states that it received no response from the complainant, and that the complainant did not report to work on either occasion.
3.5. On 24 May 2007, the respondent received correspondence from the complainant's solicitor, seeking a reference to enable the complainant to seek alternative employment. The respondent states that it facilitated this request.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminated against and discriminatorily dismissed on the ground of disability within the meaning of the Acts and whether the respondent victimised him within the meaning of S. 74(2) of the Acts.
4.2. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to S. 85A of the Acts. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of "sufficient significance" before a prima facie case is established and the burden of proof shifts to the respondent.
4.3. The first aspect of the test which the complainant has to satisfy is to show that the anxiety symptoms he experienced, which are at issue in the case, are connected to a disability within the meaning of the Acts. There is no dispute about the complainant's deafness, however, I am satisfied that his deafness is not at issue as the respondent employed the complainant for nearly 30 years without his deafness ever being a problem. Counsel for the complainant submitted that there was a link between the complainant's deafness and the psychological problems at issue, but no evidence of any kind was adduced to support this contention. I will therefore disregard it in my further deliberations on the issue.
4.4. The relevant definition of disability in S. 2(e) of the Acts reads as follows: "disability" means ... a condition, illness, or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour.
4.5. The Labour Court, in its decision A Government Department v. A Worker [ADE/07/23] has further elaborated on the meaning of this definition. The complainant in that case had been receiving treatment from a consultant psychiatrist as well as from her GP. The psychiatrist found that the complainant suffered from depressive illness. The respondent disputed the existence of a disability, and another consultant psychiatrist, as expert witness for the respondent, contended that the complainant was not suffering from depression, but rather from adjustment disorder. It was submitted adjustment disorder should not be recognised as a disability within the meaning of the Acts. The Court noted that "[i]t is noteworthy that the definition is expressed in terms of the manifestation or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is to be ascribed thereto." I interpret this as the Court saying that it does not really matter which condition provides the underlying diagnosis for the symptoms, as long as it is a medically recognised one.
4.6. What I find further relevant to the case on hand is that the consultant psychiatrists on both sides gave evidence that the complainant suffered from a recognised mental health condition. The complainant's psychiatrist had examined her; whereas the respondent's expert witness had had no opportunity to do so. Both diagnoses arrived at, however, were recognised psychiatric conditions which were diagnosed by qualified mental health professionals.
4.7. In the complainant's case, he produced two certificates from his GP, issued to the respondent within a few days of each other. The certificate from 5/12/2006 reads: "Mr Moloney suffered a fall at work in the past, which has left him psychologically scarred, preventing him from working on roofs". The second certificate, from 12/12/2006, reads: "Mr Moloney suffered a fall from a roof in the past. He is medically fit to resume work, with the exclusion of working on roofs."
4.8. According to the complainant, these certificates were written after two consultations with his GP, which lasted between 10 and 15 minutes each. The complainant was not in a position to give evidence on his GP's qualification or training in mental health, although he believed that his GP had experience in mental health issues. The complainant's GP was not called as a witness to give evidence on these matters.
4.9. I further note that approximately four years passed between the complainant's accident, and the medical notes provided. The complainant confirmed repeatedly in evidence that he did not seek treatment for any symptoms, despite also giving evidence that between his accident and December 2006, he would have worked up on ladders between 15 and 20 times. While he stated that felt dizzy and afraid while doing so, he carried out the work regardless. However, there are many people who would feel dizzy and anxious while being up on a ladder without necessarily considering themselves disabled.
4.10. In the absence of the complainant's GP being available to give evidence, I find that no explanation on how "psychological scarring" is a disability as defined under the Acts was provided to the Tribunal. Furthermore, no report from a recognised mental health professional, to confirm such a diagnosis, was produced in evidence, either. Counsel for the complainant accepted this when I put it to him during the hearing. It is therefore the case that no diagnosis of a "condition, illness or disease" was provided to the Tribunal to show that the complainant was disabled within the meaning of S.2(e) of the Acts.
4.11. From all of the above, I find that the complainant has not discharged the probative burden that the symptoms he experienced in December 2006 stem from a disability as defined in S. 2(e) of the Acts, His claims of discriminatory treatment and discriminatory dismissal on this ground must therefore fail.
4.12. With regard to the complainant's complaint of victimisation, counsel clarified that this related to an incident which happened in 2002. I find that this matter is well outside the statutory time limits specified in S. 77(5) of the Acts and that I therefore have no jurisdiction to investigate. Counsel for the complainant further submitted that alleged adverse reaction to a more recent personal injury action, which the complainant brought against the respondent, should be regarded as victimisation. However, a personal injury claim cannot ground a victimisation claim pursuant to S. 74(2). S. 74(2)(b) of the Employment Equality Acts defines "victimisation" as being dismissal or other adverse treatment of an employee by his or her employer that occurs as a reaction to "any proceedings by a complainant". However, S. 2 of the Acts defines "proceedings" as
(a) proceedings before the person, body or court dealing with a request or reference under this Act or on behalf of a person and
(b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference. [Emphasis added]
4.13. I therefore find that I have no jurisdiction to deal with this complaint since it does not relate to proceedings brought under the Employment Equality Acts.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent did not discriminate, or discriminatorily dismiss, the complainant on the ground of disability contrary to Sections 8(1) and 8(6) of the Acts; and that I have no jurisdiction to investigate the complainant's complaints of victimisation.
19 July 2010