THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2010 - 187
(represented by Mr Clive Brennan, B.L., instructed by Augustus Cullen Law, Solicitors)
A Food Manufacturer
(represented by Mr Peter Flood, IBEC)
File Reference: EE/2008/050
Date of Issue: 27th September 2010
1.1. The case concerns a claim by Mr A that a food manufacturer discriminated against him on the grounds of family status and disability contrary to Sections 6(2)(c) and (g) of the Employment Equality Acts 1998 to 2008, in terms of discriminatory dismissal due to his sick leave record.
1.2. The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 30 January 2008. No submission beyond the content of the original complaint form was received from the complainant. A submission was received from the respondent on 15 April 2009. On 25 March 2010, in accordance with his 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. 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 22 September 2010.
2. Summary of the Complainant's Written Submission
2.1. The complainant submits that when he took up employment with the respondent, he underwent a medical examination. He asserts that he gave the examining doctor full details of his three-year history of disability due to blockage of the intestine. He was given the job, and started to work for the respondent in May 2007. However, he was out on sick leave occasionally due to severe stomach pains. On 21 January 2008, he was dismissed from his employment. He asserts that the respondent did not carry out any real enquiry into his fitness to return to work, or consider any arrangements for him to return to work.
2.2. The complainant further states that he missed some work due to his daughter undergoing a medical procedure, but states that this was not brought up as an issue by the respondent at the time of his dismissal.
3. Summary of the Respondent's Written Submission
3.1. The respondent disputes discriminating against the complainant on the ground of either disability or family status. With regard to family status, it concurs with the complainant that he was facilitated with leave to care for his daughter, and that this was never at issue in his dismissal.
3.2. With regard to the complainant's alleged disability, the respondent states that it was never advised of the existence of any disability by the complainant. It received medical clearance for the complainant from its doctor, and any medical certificates received in respect of the complainant's absences only stated "illness" or "abdominal pain" as a reason. In this context, the respondent refers to the decision of the European Court of Justice in Navas v. Eurest Colectividades SA [2006; ECR1-66467] that sickness does not fall within the scope of disability under the Employment Framework Directive.
3.3. The respondent submits that the complainant was dismissed due to unacceptably high levels of absenteeism. At the time of his dismissal, the complainant was still on probation, which had been extended due to his level of absence. In particular, the respondent notes that the complainant went absent from 11 December 2007. From 24 December 2007, his absence was uncertified as the complainant made no contact with the company. On 4 January 2008, a letter was sent to the complainant with a request to explain his absence from work, and a medical certificate which referred to "illness", backdated to 27 December 2007, was received. On 16 January, a meeting with the complainant took place to ascertain a date on which he would return to work and to discuss his absenteeism to date. The respondent asserts that during that meeting, while the complainant spoke of stomach pains, he did not refer to any particular medical condition. The respondent informed the complainant that the situation would be further reviewed on 21 January. The complainant was also informed that he could bring representation to this meeting.
3.4. During the meeting of 21 January 2008, the complainant was dismissed from the respondent's employment. He was informed that it was due to his poor level of attendance at work. No reference was made by the complainant at this meeting to any disability.
4. Conclusions of the Equality Officer
4.1. The issues for decision in this case are whether the complainant was discriminatorily dismissed on the grounds of disability and family status within the meaning 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. At the outset of the hearing, I put it to both parties that since there was no dispute that the leave with which the complainant was facilitated to care for his daughter did not affect his later dismissal, there could be no discrimination on family status. The parties accepted this.
4.4. With regard to the complainant's complaint of discriminatory treatment and discriminatory dismissal on the ground of disability, the first aspect of the test which the complainant has to satisfy is to show that he is disabled within the meaning of the Acts. Counsel for the complainant clarified that the complainant's condition should be interpreted in light of paragraph (c) of the definition of disability in S. 2 of the Acts, which defines disability as "a malfunction, malformation or disfigurement of a part of a person's body".
4.5. However, no evidence whatsoever, either in the form of meaningful medical reports from relevant specialists, or the complainant's GP, was adduced to prove that the complainant is disabled within the meaning of the Acts. The only documentation the complainant provided was an appointment with a consultant and a generic letter from the hospital to advise him how to prepare for his stay. The only other medical-related evidence submitted came from the respondent and consists of non-descript sickness certificates. However, I find that these are not numerous enough to infer the existence of a disability simply from their existence. In this regard, I also take account of the decision of the Labour Court in Melbury Developments v. Valpeters [EDA0917], in which the Court, asked to interpret S. 85A of Acts which addresses the shift in the burden of proof, held unequivocally that the onus of establishing a prima facie case is on the complainant. The Court stated:
Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. 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 speculation 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. [Emphasis added]
4.6. In my opinion, the findings of the Court certainly apply in cases of alleged disability, where the relevant evidence is virtually exclusively in the possession of the complainant. From all of the above, I find that the complainant has not discharged the probative burden that he suffered from a disability as defined in S. 2(c) of the Acts, His claims of discriminatory treatment and discriminatory dismissal on this ground must therefore fail.
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the respondent did not discriminate against, or discriminatorily dismiss, the complainant contrary to Sections 8(1) and 8(6) of the Acts on the grounds of either disability or family status.
27 September 2010