THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
Decision DEC - E2011 - 081
Mr. David Guinane
(represented by Twomey Scott & Co., Solicitors)
Tesco Ireland Limited
(represented by Mark Dunne B.L. instructed by Legal Department, Tesco Ireland Limited)
File Reference: EE/2008/173
Date of Issue: 26th April, 2011
File references: EE/2008/173 - DEC-E2011- 081
Keywords - Employment Equality Acts 1998-2008 - Sections 6 and 8 - Discriminatory Treatment - Disability - Discriminatory dismissal - Failure to provide reasonable accommodation - not covered by the ground.
1.1 This dispute concerns a claim by Mr. David Guinane that he was discriminated against by Tesco Ireland Limited on the grounds of disability contrary to Section 6(2)(g) of the Employment Equality Acts 1998-2008 in relation to failure to provide reasonable accommodation in terms of Sections 8(1)(b) and 16(3) of the Acts. The complainant is also alleging discriminatory dismissal.
2. Delegation of the complaint
2.1 The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on the 25th March 2008. On the 30th June, 2010, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, James Kelly, 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 hearing of the case on 10th March 2011, where both parties were in attendance.
3. Summary of the Complainants' case
3.1 The complainant claims that he was employed as a general assistant with the respondent from the 10th September 2007. His duties included packing shelves, cleaning floors and generally tidying up in and around the store and in the warehouse. He worked between 30 and 35 hours per week and was paid approximately €9 per hour.
3.2 He claims that in early October 2007 he experienced chest pains and was rushed into the A&E department of the Regional Hospital in Limerick. He claims that having spent hours on a trolley and feeling much improved he decided to leave without having had any further medical assessment. He claims that he felt very weak so he visited his General Practitioner on the following Monday and got a medical certificate to cover his absence from work. He claims that his mother made contact with the respondent and informed it that he was absent as he was medically unfit to attend work. In his written submission of the 20th October 2008 he claims that he was diagnosed with having pulled muscles in his chest. On the day of the hearing he claims that he has had a reoccurrence of the chest pains on occasion since that date and that he is under investigation for these chest pains. However, no medical reports were available to present as evidence to diagnose the complainant's condition.
3.3 He claims that when he returned to work on the 22nd October 2007 he was told to go to speak with Mr. A, who was the complainant's supervisor. He claims that the supervisor told him that he did not believe that he was sick and that he had seen him hanging around Limerick city. The complainant claims that when he handed Mr. A the medical certificate from his GP, Mr. A, just tore it up in front of him and he dismissed him there and then. He claims that he was then escorted from the premises.
3.4 The complainant refutes the respondent's claim that he was questioned by Mr. A about doctoring the medical certificate and that he resigned his position there and then himself. At the hearing the complainant provided me with a letter from his Doctor's secretary confirming that his Doctor was notified by the hospital that Mr. Guinane attended A/E in October 2007. However, this letter stated that it did not have a copy of the medical certificate issued by it on behalf of the complainant at the time.
4. Summary of the Respondent's case
4.1 The respondent opened its store at Coonagh Cross in Limerick in October 2007 and advertised for general operatives to commence employment the previous July/August. It claims that Mr. Guinane took up a post with it on the 22nd September 2007 and worked between 30 and 35 hours per week. The respondent did not dispute that Mr. Guinane went out on sick leave. It pointed to the inconsistency in the complainant's evidence as to when he took ill and where he took ill (as there is an obvious discrepancy between the written and oral evidence). However, it does not dispute that the complainant's mother did contact it to report his absence due to his illness.
4.2 The respondent was not in a position to present Mr. A, the complainant's supervisor as a witness. It claims that it had tried to locate Mr. A and ask for his attendance at the hearing as a witness. However, with the passing of time Mr. A has left employment with the respondent and it understands that he has left the country and they were not able to locate him. Accordingly, it was unable to provide the Tribunal with any direct evidence in relation to the incident between the complainant and Mr. A on his return to work after his illness. The respondent did present a written statement, which it claims was placed on the complainant's file and was signed by Mr. A. This document outlines a statement from which it claims that Mr. A confronted the complainant about a medical certificate that was presented that had been altered and it states that the complainant admitted altering the medical certificate to Mr. A and resigned his position there and then. Finally, the respondent maintains that Mr. A did not have authorisation to dismiss the complainant and therefore it utterly disputes that the complainant was dismissed by Mr A.
4.3 In relation to the claim by the complainant that the respondent failed to provide him with reasonable accommodation, the respondent argues that the complainant returned to work after the illness had passed and claims that he was fit to resume duties. It claims that the complainant did not outline a disability at that time and did not asked for the respondent to provide him with any special treatment or measures in the form of reasonable accommodation to assist him in his return to work. Accordingly, it is at a loss as to this part of the claim against it.
4.4 The respondent raised a preliminary issue as to whether Mr. Guinane can rely on the Acts as it claims that he does not qualify as a person with a disability within the meaning of the Acts. It claims that the onus is with the complainant to establish his case and firstly establish that he has a disability. However, it claims that there are no medical reports diagnosing Mr. Guinane's condition. It further claims that there are no expert medical witnesses to give evidence of the complainant's disability. It claims that the only evidence present is various snippets of medical records from the hospital since October 2007 which does not amount to an identification of any disability. The respondent claims that this case is not about a disability but simply about an illness/sickness and that I should consider the relevant case law in particular to the decision of the European Court of Justice in Navas v. Eurest Colectividades S.A where it was found that sickness does not fall within the scope of a disability under the Employment Framework Directive. It also asked me to consider other decisions of the Equality Tribunal in relation to similar cases, namely Colgan v Boots Ireland Limited [DEC-E2010-008], O'Rourke v J.J. Red Holdings limited t/a Dublin City Hotel [DEC- E2010-045] and A Worker v A Food Manufacturer [DEC-E2010-187].
5. Conclusions of the Equality Officer
5.1 The issues for decision are whether firstly, the complainant was discriminatorily dismissed on the grounds of disability within the meaning of the Acts. I also have to consider if the respondent failed to provide the complainant with reasonable accommodation in relation to his return to work after a short absence. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties.
5.2 In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts, 1998 and 2008, which states: "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 means that the complainant must first establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the respondent. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. Section 6(1) of the Acts provides that discrimination shall be taken to occur where "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).....". 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.
Claim of discrimination on the disability ground
5.3 Section 6(1) of the Employment Equality Act, 1998 provides that:
Discrimination shall be taken to occur where, on any of the grounds mentioned in subsection
(2) (in this Act referred to as "the discriminatory grounds"), one person is treated less
favourably than another is, has been or would be treated."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter
(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"),
5.4 "Disability" is defined in section 2 as meaning -
"(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person's body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person".
5.5 It is clear that the onus rest with the complainant to establish a prima facie case of discrimination on one of the grounds covered by the Acts. In this case the complainant has stated that he suffered from "chest pain". In his written submission to the Tribunal in October 2008 he claims that he was diagnosed as having "pulled muscles in his chest". On the day of the hearing there was an indication that he was having ongoing tests with a Cardiologist regarding a possible heart complaint. No medical evidence was provided to diagnose the complainant's condition/sickness. In correspondence to the Tribunal prior to the hearing the respondent had denied that the complainant suffered from a disability within the meaning of the Acts and put the complainant on proof of this. I wrote to the complainant prior to the hearing and also informed him that I required to be copied with all medical certificates and assessments in relation to his condition and any tests taken in relation to same. The complainant's evidence is that the medical certificate from his GP at the time of the alleged incident was ripped up by Mr. A and he was unable to get a copy from his GP. The respondent's evidence is that there is no record of a medical record on Mr. Guinane's file. No other medical evidence has been presented to me in relation to Mr. Guinane.
5.6 I note the decision of the Equality Tribunal in A Worker v. A Food Manufacturer, where the Equality Officer when faced with a similar set of particulars as is the case here said:
"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."
5.7 I find that the circumstances of the case before me for consideration are essentially one in the same to that of the Equality Officer in the case mentioned above in the preceding paragraph. I am satisfied that if there are some doubts about the existence of a disability within the meaning of the Acts from the evidence presented, the onus squarely rests with the complainant to establish facts to correct this anomaly by way of medical or other appropriate evidence as the case requires. In the absence of such evidence in this case, I find the complainant has not discharged the probative burden that he suffers from a disability as is defined by the Employment Equality Acts at Section 2. Accordingly, the complainant's claim under the said Acts on the disability ground must fail.
I have completed my investigation of this complaint and make the following Decision in accordance with Section 79(6) of the Acts. I find that -
(i) the complainant has failed to establish a prima facie case of discrimination on the grounds of disability contrary to Section 8(6) of the Acts, and,
(ii) the complainant has failed to establish a prima facie case that the respondent has failed to provide him with reasonable accommodation contrary to Section 16(3) of the Acts.
I find in favour of the respondent in this case.
26th April 2011