FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : HEALTH SERVICE EXECUTIVE NORTH WEST (REPRESENTED BY HEGARTY AND ARMSTRONG, SOLICITORS) - AND - PATRICIA CULLEN KILLORAN (REPRESENTED BY JOHN GERARD CULLEN, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision no: DEC-E2016-123.
BACKGROUND:
2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on the 30 September 2016. Two Labour Court hearings took place on the 22 June 2017 & 28 February 2018. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Ms Patricia Cullen Killoran against the decision of an Equality Officer /Adjudication Officer under the Employment Equality Acts 1998 – 2011. The Complainant alleged that she had been discriminated against and harassed on the grounds of her disability and family status by her employer the HSE, she also claimed that she had been victimised.
The Complainant referred her claims under the Acts to the Equality Tribunal on 3rdDecember 2012.
By decision dated 30th August 2016 and bearing reference no DEC-E2016-123, the Equality Officer /Adjudication Officer held that the Complainant had failed to establish aprima faciecase of discriminatory treatment, harassment and victimisation on the disability ground. He found that the Complainant was not a person with a disability at the relevant period.
At the first hearing before theEquality Officer/Adjudication Officer on 13thOctober 2015, the elements of the complaints relating to family status were formally withdrawn by the Complainant’s Legal Representative. The Equality Officer /Adjudication Officer’s Decision was issued on 30thAugust 2016, it was appealed to the Court on 30thSeptember 2016. The Court held hearings on 22ndJune 2017 & 28thFebruary 2018.
Application by the Respondent
At a hearing before the Court on 22ndJune 2017, Mr Brian Armstrong, Hegarty & Armstrong Solicitors, on behalf of the Respondent made an application to the Court that the Complainant’s claim should be dismissed under Section 77A of the Acts for two reasons, (i) the claim was misconceived and (ii) the claim related to a trivial matter. The Court considered the application made.
In Determination EDA1725, the Court held that as no application was made to The Director General of the Workplace Relations Commission under Section 77A of the Acts that the claim had been made in bad faith or was frivolous, vexatious or misconceived or related to a trivial matter. Therefore, as no application was made there was no such decision on appeal, accordingly, having regard to statutory provisions, the Court did not have the jurisdiction to accede to the application made.
Procedures of the Court
As the Equality Officer /Adjudication Officer found that the Complainant was not a person with a disability at the relevant period and held that she had failed to establish aprima faciecase, the Court decided to hold a hearing to consider the preliminary matter of whether or not the Complainant had a disability at the relevant time within the definition of Section 2 (1) of the Employment Equality Acts 1998 – 2011. This was held on 22ndJune 2017. However, due to the volume of submissions made by the Complainant it was not possible to complete this aspect of the case on that day. Furthermore, at the closing of the case on the day, Mr Armstrong made the above-mentioned application. The Court issued its Determination on that application on 28thJuly 2017 and proceeded to set aside two days on 28thFebruary/1stMarch 2018 to hear both the preliminary matter and the substantive case.
Background
The Complainant is employed by the Respondent as a Public Health Nurse in the Tubbercurry area.
On 8thJune 2012, the Complainant was informed that her mother had taken seriously ill and was being brought to hospital in Dublin. The Complainant informed the Court that on hearing this news, she sought to be with her mother.
The first alleged incident of discrimination occurred on 11thJune 2012, when the Complainant telephoned the Respondent to notify it of her sick leave on medical advice due to stress. The Complainant asserted that she was obliged to take “force majeure” on 8thJune 2012 to look after her mother who was gravely ill and taken into hospital. She alleged that she was further harassed, bullied and victimised on 20thAugust 2012 when she was summoned to a meeting while on sick leave to discuss her “poor communication performance”, when she had left her post on 8thJune 2012 without verbal consent and/or without notice.
Summary of the Complainant’s Case
Mr John Gerard Cullen, John Gerard Cullen Solicitors, on behalf of the Complainant submitted that the Complainant was discriminated against by the Respondent on 11thJune 2012 when she made a telephone call to the Respondent and was further discriminated against when she was required to attend a meeting with the Respondent on 20thAugust 2012.
Mr Cullen submitted numerous submissions and extensive documentation in the course of the appeal which the Court has succinctly summarised in this Determination.
- Alleged acts of discrimination
Mr Cullen alleged that the Complainant was bullied and harassed on the telephone by the Senior PHN, on the 11th June 2012, when she telephoned her to inform her that she was on certified sick leave. The Complainant followed up this call with a formal complaint against the Senior PHN. He said that no investigation was undertaken by the Respondent on foot of such complaint. Instead, he asserted that the Complainant was invited to a retaliatory meeting on 20thAugust 2012 to discuss her 'poor communication skills' where she alleged that a note taker falsely recorded the Complainant as making an 'admission' of leaving her work area unprofessionally so as to endanger patients on 11th June 2012. This, Mr Cullen asserted was a creative attempt to attack the Complainant’s dignity and professionalism. This occurred without the Complainant being advised prior to the meeting that such an allegation would be made at the meeting.
Furthermore, he alleged that at the said meeting the Complainant was advised that in addition to the submission of doctor's certificates and the sending of text messages to the Respondent, the Complainant was obliged to telephone the Respondent on a weekly basis during her sick leave absence, regardless of her condition, as the Principal PHN ‘preferred it’.Mr Cullen submitted that these acts were also acts of discrimination on the disability ground and were acts of victimisation in consequence of the complaint she made about the alleged harassment and discriminatory treatment by the Senior PHN on the telephone on 11thJune 2012. He alleged that the victimisatory conduct resulted from the unprocessed complaint she made against the Senior PHN, and which are encompassed by the meaning of section 74(2) of the Acts, were as follows: -
- Dissemination of the Complainant’s sick records by email to all staff
- A malicious report of 'disturbed behaviour' by the Complainant to HR
- Mr Cullen claimed that the Respondent retaliated against the Complainant for making a complaint against the Senior PHN when the Principal PHN made a malicious report to HR without her knowledge of the Complainant’s (and her brother’s) disturbed behaviour, which was designed to conclude that the Complainant was unstable. He said that these were effectively allegations of criminal behaviour and neglect and submitted that the Principal PHN’s complaint was a targeted and victimisatory act of discrimination.
- The manufacture of a false note of admission of professional misconduct
- Mr Cullen submitted that the Respondent recorded in the minutes of the meeting held on 20thAugust 2012 that the Complainant admitted to leaving her work area unprofessionally so as to endanger patients on 8th June 2012. He said that she had been effectively ambushed into such an admission without being advised beforehand that such a serious allegation would be made. This he contended was a form of retaliation for the complaint she made against the Senior PHN on 18thJuly 2012.
The refusal to notify colleagues of the death of mother
- Exclusion of the Complainant from email communication etc
- The non-processing of complaints the Complainant made against three members of management
- Mr Cullen submitted that it was not been possible for the Complainant to process any of her complaints to date against three members of management as her colleagues are petrified to accompany her to any grievance meeting and the trade union did not to wish to get involved.
Trebling of her workload
- Mr Cullen stated that when the Complainant returned to work at the end of 2012 she was then forced to carry out grossly excessive levels of 'cross cover'. During 2013 and 2014 and for part of 2015 she was required to do the work of two and three public health nurses. Once a week she was required to do the work of three PHN's and she was left without administrative support and without any community RGN support.
- Denial of right to legal representation
- Mr Cullen alleged that the Complainant was denied access to legal representation at the meeting on 20thAugust 2012, when he as her Solicitor, was refused access to the meeting.
In support of the Complainant’s claim of victimisation, Mr Cullen cited comparators whom he alleged were treated differently in similar circumstances.
Mr Cullen submitted that in order to meet the burden of proof under section 85A, an employee must (as in this case) demonstrate that there is a causal connection between the taking of 'proceedings' under the Act and the adverse treatments meted out thereafter by the employer.
- Disability
The Complainant reported that she was ill and unfit for work in a telephone conversation with the Senior PHN on 11thJune 2012. She indicated to her that she was stressed at a very difficult time as her mother had been taken seriously ill. Mr Cullen relied on the express definition of “disability” in section 2 of the Acts which he submitted further advances a social definition of disability [for the purposes the instant case] as'the total or partial absence ofaperson's bodily or mental functions ....(b) the presence in the body of organisms causing likely to cause chronic and disease or illness .....or (e) acondition illness or disease which affectsaperson's thought processes, perception of reality, emotions or judgement, or which results in disturbed behaviour and shall be taken to include the disability which exists at present, which previously existed, but no longer exists which may exist in the future, or which is imputed toaperson'.
Mr Cullen maintained that under such domestic law, conditions which are minor in nature are protected. It does not exclude temporary conditions from the definition of disability. Furthermore, he stated that it does not distinguish disability from sickness or illness. It expressly provides that an illness constitutes a disability.
Mr Cullen stated that following the meeting on 20thAugust 2012, the Complainant needed psychotherapeutic intervention and required hospitalisation. He contended that there could be no rational suggestion that such condition fell below anyde minimusbar and or that it did not adversely affect her judgement and perceptions.
Mr Cullen sought to rely on a psychological report by Dr Kevin Lambe, Consultant Clinical Psychologist who carried out a psychological evaluation of the Complainant on 2ndJune 2017.
Mr Cullen claimed that in the making of a complaint based on disability an actual disability is not required. He submitted that the Complainant may also rely on the extension of the meaning of “disability” to ‘associated' disability, as held in the CJEU case ofColeman v Attridge Law[C-303/06] whichinter aliaestablished that the disability of an associate was a cause of action. Relying on that premise he stated that the Respondent was fully aware of the terminal illness of the Complainant's mother. While relying on the assertion that the Complainant’s illness came within the statutory definition, he also maintained that the fact of a complaint obviates any requirement that a complaint of discrimination must be actually upheld for a claim of victimisation to succeed: in support of his contention, he citedA Claimant v A Department StoreDEC-E2002l17.
Mr Cullen addressed the issues of indirect discrimination and reasonable accommodation and alleged that the reporting of the Complainant to HR in the instant case was unbalancedsimpliciter.He referred to section 16 of the Acts and stated that this section imposes a positive duty on employers to take appropriate measures to enable a person with a disability to participate in or advance their employment. He submitted that the mandatory language of section 16.3 places an absolute duty on an employer to rationally investigate and consider forms of reasonable accommodation for claimed disability prior to taking specific adverse action against an employee.He said that the Complainant was denied access to legal representation at the meeting on 20thAugust 2012. There was no reasonable accommodation in relation to the processing of her harassment or grievances. There was no reasonable accommodation in terms of reducing her workload.
- Witnesses on behalf of the Complainant
Mr Cullen alleged that the Court denied him the right to hear evidence from his nominated witness, Mr Anderson. It was explained to the Court that Mr Anderson, a scientist, conducted a forensic analysis of recordings which were made of the meeting held on 20thAugust 2012.
At the Court hearing on 22nd June 2017, scheduled to hear a preliminary issue of whether or not the Complainant hadlocus standi, i.e. whether she was suffering from a disability at the material time, as defined by section 2 of the Acts, the Court ascertained from Mr Anderson if the evidence he intended to give would address this issue. He replied that it would not, therefore the Court informed him that he was excused and was not required to give evidence that day.
On the second day of the appeal hearing, 28thFebruary 2018, Mr Cullen sought to have Mr Anderson give evidence on his forensic analysis of the recordings made both prior to and at the meeting held on 20thAugust 2012. These recordings were made without the knowledge of either the Complainant or the Respondent. Mr Cullen informed the Court that he had placed a recording device in the Complainant’s handbag and had carried a recording device on his person. Mr Armstrong on behalf the Respondent stated that the Respondent has nothing to fear from an accurate record of the meeting of 20th August 2012. However, as the recordings were made surreptitiously the Court decided not to allow them into evidence. On that basis the Court decided there was no need to hear evidence from the scientist, Mr Anderson on the recordings of that meeting.
Mr Cullen requested the Court to hear evidence from Dr Lambe in relation to the Complainant’s disability. The Court noted that Dr Lambe’s consultation with the Complainant occurred on 2ndJune 2017, more than five years after the alleged discrimination in June and August 2012, and four and a half years after the date the Complainant lodged her complaints under the Acts, on 3rdDecember 2012. On that basis the Court was of the view that there was no probative value in the evidence proffered which could be accepted as evidence on which the Court could base findings of fact. The Court outlined its reasons at the hearings for its decisions.
The Complainant’s Evidence
The Complainant told the Court that she had worked in the Tubbercurry Health Centre as a Public Health Nurse (PHN) since September 2011, having previously worked in the Mayo Health Centre. She said that when she commenced in that area she was required to work in office conditions which were under renovation. She said that it was very traumatic working in these conditions and she brought this to management’s attention. She said that shortly afterwards her mother’s health became an issue. On 8thJune 2012 she received a phone call from her brother to say that her mother was taken into hospital in Dublin as she was seriously ill. She said that she made arrangements with her colleague to complete some tasks in the Leg Ulcer Clinic and to attend to two patient calls before she left for the hospital in Dublin. She said that she made a number of attempts to contact members of management but to no avail as they were attending a meeting. She said that she left messages to say that she needed to take a force majeure day due to her mother’s ill health. She said that she was still in her area when she received a text message with permission to leave.
The witness said that on 11thJune 2012 she made a call to the Senior PHN in the PHN Office to inform her that she had been medically certified by her GP as unfit to work. She said that the Senior PHN responded by saying that she could not take time off just because her mother was ill. The witness said that she responded by saying that that was not the reason and that she was certified as being ill. The Complainant said that she was “badgered and criss-crossed on the phone” by the Senior PHN. The Senior PHN asked her if she was available for handover. The Complainant said that she found the Senior PHN’s tone very intimidating and upsetting. She said that the insinuation given was that she was ill because her mother was ill. She said that she was so shaken by the call that she wrote a letter of complaint to the Acting Director DPHN. She said that the letter was never responded to and that she was victimised as a result of writing the letter.
She said that when she was asked to attend a meeting on 20thAugust 2012, she assumed it had to do with her letter of complaint. However, she was surprised to find that it was to discuss her “poor communication skills” and that she was required to telephone in on a weekly basis while she was on sick leave. She said that it was not normal practice to be required to telephone her work on a weekly basis while out sick however, it was requested of her as the Principal PHN “preferred” it.
She said that the following week she was requested to attend Occupational Health, who diagnosed her as suffering from work related stress and suggested that a risk assessment be carried out. She said that this assessment was followed by a case conference, neither of which she was informed of. The witness said that her stress was caused by her working conditions, lack of support and a doubling of her workload while she covered for maternity leave absences.
The witness gave an account of the meeting on 20thAugust 2012. She said that she felt she had to attend as it related to her “poor communication skills”. She said that she attended the meeting accompanied by her brother for support. The Principal PHN and a Clerical Officerwere in attendance. She said that she was never asked how she was but was asked about the events of 8thJune 2012 and it was insinuated that she had left her area without permission. She said that she was traumatised by this insinuation as no one had ever complained about her professionalism before. She said that she explained how she had made attempts to contact members of management but to no avail and that she had received a text message giving her permission to leave. She said that managment suggested that no one was aware of missed calls or messages left on the day she left her workplace to attend to her mother.
At the conclusion of the meeting she was requested by her manager to telephone in on a weekly basis while out on sick leave as it was the preferred method of communication. The witness said that this was not strictly in accordance with the normal policy and she was not comfortable with doing so. She said that she found the meeting so upsetting that she was hospitalised the following day.
The witness said that she was not set up on the email system in Tubbercurry from 2011 until April 2013; she was required to carry an excessive workload due to maternity leave cover and details of the cost of absenteeism rates was circulated to all staff in November 2012 which showed that her absence level was the greatest financial cost.
In cross examination, the Complainant accepted that the normal complement of PHN staff in the Tubbercurry office was two PHN’s, with support from a Registered General Nurse.
The Complainant said that she was a member of a trade union and she had been a trade union representative for staff. Mr Armstrong asked her if she was part of such a union why did she not involve the union in her grievances with the Respondent, considering that she had raised other issues through the union. She said that the union was not involved as she had instigated legal proceedings.
The Complainant was asked why there was no reference to her disability at her induction when she came to Tubbercurry. She stated that she had no disability at that point but that it had arisen due to what happened at Tubbercurry, including her working conditions during the renovations to the office.
Mr Armstrong queried the events of 8thJune 2012 with the Complainant. He asked her if she spoke to any member of management on the day. She replied that she had spoken to her colleague, had a reply to her text message and that she could not get in touch with management. He said that there was no record of missed calls.
Mr Armstrong challenged her regarding her sick cert which stated that she was suffering from “stress”. He put it to her that such stress could not have been caused by her call to the Senior PHN on 11thJune 2012 as the cert had clearly preceded that call. Nor could it have been caused by the circumstances relating to her leaving her work on 8thJune 2012 as there had been no conversation/communication with her prior to the call she made to her Senior PHN. Mr Armstrong made the point that the building works had completed in January 2012, therefore the stress could not have been caused by any adverse working conditions which had ceased five months previously.
The Complainant said that during the phone call the Senior PHN questioned her about her absence and stated that she could not take leave because her mother was ill. The witness was asked if she agreed with this point and acknowledged that she did agree. However, she said that she was very upset by this remark.
The witness said that the following week, she sent in a further cert and sent a text message to say that she would be absent for the week. She said that around 15thJune 2012 the Acting Director of Public Health Nursing (the Acting Director) phoned her and left a message enquiring about her mother’s health. Mr Armstrong asked the Complainant about a call from the Acting Director made on 21stJune 2012 which was not answered by the Complainant. Her husband rang back and the Acting Director made enquiries about the Complainant’s health and he informed the Acting Director that the Complainant’s mother was progressing well. The witness said that she had no recollection of that call. The Complainant confirmed that the Principal PHN did call her to enquire about her health.
Mr Armstrong put it to the witness that as she was submitting medical certs and sending text messages, it was not possible for the Respondent to know the extent of her illness, it was trying to plan a service and needed to know her situation, therefore it was reasonable to ask to meet with her. The Complainant replied that she felt harassed and intimidated by the enquiries being made.
Mr Armstrong asked about a letter sent to her on 10thJuly 2012 from the Acting Director, which stated that she was sorry to hear that she was unwell and thanked her for her weekly certificates. The letter stated that as she had been absent for some time and although she had received communication from her in the form of text messages, she had been unable to make personal contact with her. The letter stated that the Respondent was here to offer her support and it outlined a date for a meeting with her on 16thJuly 2012. The witness confirmed that she had received that letter however, she sent a text message to say that she was not fit enough to attend the meeting. Following which the Complainant accepted that she received a further letter dated 18thJuly 2012 from the Acting Director referring her to the Occupational Health Department for assessment and support. In the letter the Acting Director assured her that she was there to talk to or give her any support. Mr Armstrong put it to the Complainant that her response to that letter was the Complainant’s letter of the same date in which she makes the complaint regarding the telephone conversation between herself and the Senior PHN which took place on 11thJune 2012. He asked the witness if that was the first communication (other than texts and certs) she had with the Respondent since she went on sick leave on 11thJune 2012. She confirmed that it was and gave the reason which she said was due to the call she had with the Senior PHN, which she did not wish to repeat. In any event she said that she was following policy and procedures. Copies of the letters were put in evidence.
The Complainant accepted that on 25thJuly 2012 the Principal PHN called her. She said that during that call she raised her grievance regarding the conversation she had with the Senior PHN in the phone call on 11thJune 2012. The Complainant said that the Principal PHN advised her to use the grievance procedures.
With reference to the meeting on 20thAugust 2012, Mr Armstrong asked her if her brother was invited; did she inform management that she was bringing him to the meeting; did he or she inform management that both he and she were recoding the meeting. She replied no to each question and said that she did not feel the need to seek permission for her brother to be present. She said that her brother came along as support as she was in no fit state to drive. She said that she did not inform management that her brother was a solicitor.
Regarding the content of that meeting, the Complainant said that when the issue of her poor communication skills was discussed she said that she would not communicate with management until her grievance was dealt with. Mr Armstrong asked the Complainant did she comply with management’s instruction to her that if she wished to raise a grievance then she should go through the HSE Grievance Procedure, she said that yes she did, however, it was not until April 2016. She said that at that point, in April 2016, she made a formal grievance complaint with the assistance of her solicitor.
Mr Armstrong put it to the Complainant that although she was submitting weekly certs covering the period from 11thJune 2012 until 26thNovember 2012 stating that she was suffering from “stress”, she never indicated to management the reason for her stress. She replied that the Respondent had made an allegation that she was not caring for her patients, she was suffering from stress at the time and management had made no attempt to communicate with her or give her support.
When challenged regarding this statement, as Mr Armstrong put it to her, that she was the one who would not communicate with management and that she had refused to take calls she replied that she was treated differently to others, she was victimised. The Complainant accepted that she had suffered no loss in pay.
In answer to questions from the Court, the Complainant was asked if she had ever formally requested force majeure leave for the 8thJune 2012, she replied that yes she had done so, in January 2013 on her return to work.
She accepted that there were numerous calls from the Respondent during her absences however, she did not respond to them. She said that they more or less ceased after she went to the Occupational Health Department. The Complainant was asked who provided cover for her when she was out sick, she replied that the two PHN's from an adjoining area covered for her.
With regard to the recording made of the meeting on 20thAugust 2012, the Complainant said that she was not aware that there was a recording device in her handbag and that she had picked up her solicitor’s assistants bag by mistake and taken it to the meeting. She said that her brother, who was also her solicitor was also recording the meeting.
When asked about the email which was circulated in November 2012, the Complainant said that it was specifically targeted at her. She said that at the time she was not on the email system and suggested therefore that the Respondent was of the view that she would not find out about it. She accepted that the email contained details of the cost of absenteeism of 80 members of staff however, she said that as hers was the most costly it highlighted her.
The Complainant was asked about the references in management’s letters dated 10thand 18thJuly 2012 offering her support, she responded that she felt that such offers were “empty”. She was asked why her trade union did not get involved in her case, she said that in her view they were “afraid”.
Summary of the Respondent’s Case
- Disability
On behalf of the Respondent, Mr Armstrong submitted that the Complainant lackedlocus standito bring the complaint. He contended that a pre-requisite to any claim in respect of discrimination by reason of disability a complainant must be affected by some disability. He stated that the Respondent has never been made aware that the Complainant had a disability within the meaning of the Acts. Mr Armstrong said that the arguments put forward by the Complainant lacked cogency and amounted to a confused scattergun approach been taken with her legal representative. He said that the Complainant seemed to be arguing that the cause of her alleged unfitness for work on 11th June 2012 and thereafter, which was medically certified as suffering from “stress”, amounted to a "disability" and that this was the cause of the alleged discrimination.
Mr Armstrong disputed the assertion that stress in this context could amount to a disability and therefore submitted that even on her own case, nothing set out in the complaint could meet the definition of disability in the Act.
He said that no evidence has been advanced that her thought processes; perception of reality; emotions and or judgment; were affected or that her behaviour was disturbed at the relevant time. Indeed, he asserted that from the accounts of what was said during the phone call on 11thJune 2012 (the essence of which were not in dispute) and the records of the meeting held on 20thAugust 2012 (the essence of which were not in dispute), it was apparent that the Complainant was fully in control of her situation and gave a most robust account of herself.
Mr Armstrong pointed to the lack of a medical diagnosis stating that she was suffering from a “disability” at the material time. He said that her GP had certified her from June 2012 assuffering from STRESSuntil her last certificate which dated 19th November 2012 which read"The above was suffering from STRESS and will be fit for work on the 26thNov 12".
Mr Armstrong dismissed a medical report dated 21stJune 2017 from aConsultant Psychiatrist as it was generated at the time of the Adjudication Officer’s hearing rather than at the time of the events in question, and it was clear that the Complainant had not attended the Consultant during the relevant period. He submitted that the content of the report was largely a recitation of what the Complainant told the Psychiatrist and represented the Complainant's subjective view of the events. He said that while the Respondent would not argue that situations such as those described in the medical reports are not stressful, however, he contended that such stress comes within the ordinary vicissitudes of life. He said that unfortunately its a matter f fact that a heavy workload and lack of resources are the norm in the health service in the current climate and the illness of an elderly parent is something which comes to almost every member of the community sooner or later.Furthermore, there had been no significant issues with the Complainant over the four-year period since these events.
In support of his contention, Mr Armstrong citedGovernment Department and A WorkerDetermination No EDA094, where this Court held: -
- "Nevertheless, no statute can be construed so as to produce an absurd result or one that is repugnant to common sense. That common law rule of construction has now been given statutory effect by s.5(1) of the Interpretation Act 2005. It would appear to the Court that if the statute were to be construed so as to blur the distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other, it could be fairly described as an absurdity."
In that case, the Court held,on the medical evidence before it,that the condition of the complainant was more suggestive of depressive illness, which is a recognised psychiatric illness,than of an adjustment disorder and was a disability for the purposes of the Act.
Mr Armstrong said that in the instant case, no case has been made by the Complainant that she suffered from a recognised psychiatric illness and no evidence to that effect has been given.
- Alleged acts of discrimination
With regard to the allegations of discrimination concerning the phone call of 11thJune and the meeting on 20th August 2012, Mr Armstrong submitted that these matters could have properly been the subject of a complaint and investigation under its "Dignity at Work" policy. The Complainant was clearly advised on a number of occasions in correspondence from the Assistant National Director of Human Resources how she should proceed with this but failed to do so. In fact, the Complainant did invoke the HSE grievance procedure in 2016 and the matter has since been the subject of correspondence with her and her solicitor. In any event he submitted that there was nothing inappropriate in the Senior PHN’s response to the Complainant informing her that she could not accept a medical certificate on the basis that her mother was sick and that sick leave had to be approved and in asking her if she would be available locally, as she (the Senior PHN) needed to contact the adjoining PHN and locum staff to arrange cover for the Complainant’s area.
With regard to the meeting of 20th August 2012, he said that the meeting was arranged at the request of the Principal PHN due to the absence of proper communication by the Complainant while on sick leave and to determine progress and her plans for return to work. Mr Armstrong said that the Complainant’s communicationduring the period of sick leave was unsatisfactory and the invitation to a meeting to discuss it was fully justified. She had been invited by letter dated 10th July 2012 to meet on 16th July 2012, but the Complainant responded that she was unable to meet. A referral to HSE Occupational Health Department was then arranged for the Complainant and a new date for a meeting was set for 20thAugust 2012.The Complainant arrived with her brother, Mr Cullen, who insisted on remaining, despite being advised that he was not permitted to do so as he was not a recognised representative in accordance with the Respondent's policies and procedures. Neither he nor she disclosed that he was also her solicitor. He was requested to remain outside the office while the meeting was conducted. The Principal PHN requested her secretary to join the meeting and make notes. Mr Armstrong said that Mr. Cullen openly admitted that he was listening outside the closed door and proceeded to enter the meeting without permission. Mr Armstrong said that it was not known until the second day of the hearing before the Adjudication Officer that two surreptitious recordings had been made of the meeting.
Mr Armstrong stated that the intervention of the Complainant's brother/solicitor was particularly unfortunate. He said that his contribution overall and the tone and content of his communications were most unhelpful.
Mr Armstrong contended that having to account to an employer for an irregular absence from work and a refusal to communicate in the required manner are certainly matters which are stressful, even if the Complainant was the author of these particular factors herself. However, he submitted that the notes of the meeting demonstrate that the Principal PHN did not in any way harass, bully or victimise the Complainant and did no more than properly exercise her functions as the manager of the Complainant. Mr Armstrong said that it defied logic that an allegation of bullying and harassment might be raised on the basis of these exchanges. Nothing that happened met the definition of bullying behaviour in the HSE's Dignity at Work Policy. He said that the Complainant was not victimised and nothing in either her complaint form or her submission could support such an allegation.He also denied that any events which occurred constituted or could constitute discrimination against the Complainant.
Mr Armstrong stated that the Respondent acknowledged that events can happen at a particular point in the life of an individual which can together create a crisis. In recognition of this, no issue was made of the Complainant’s behaviour which another employer might have treated differently. He said that the referral to the Occupational Health Service was an appropriate response to the Complainant's situation at the time and contributed very substantially to her recovery.
- Denial of legal representation
Mr Armstrong stated that there was no denial of a right to legal representation to the Complainant at the meeting of the 20th August 2012 as no such right existed. She was invited to have a colleague or a trade union official represent her at the meeting, as per the normal procedures which she declined.
- Circulation of Absenteeism Data
Mr Armstrong stated that the email circulation of absenteeism records was unintended and has been acknowledged as a mistake. The data pertaining to all employees in the department (including the managers own) was included and there was nothing specific to the Complainant in it.
Completion of Incident Report by thePrincipal PHNto HR
Mr Armstrong told the Court that the report referred to by Mr Cullen was an incident report prepared by the Principal PHN, following the events surrounding the meeting on 20thAugust 2012. It was compiled in accordance with the procedures under the National Incident Management System. He said that the Principal PHN was obliged to complete such a report following an adverse/"near miss" incident which she deemed had occurred at the August meeting. Mr Armstrong stated that the problems at the meeting arose from the Complainant’s own conduct and were escalated by the conduct of her brother/solicitor.
Record of minutes taken at the August meeting
- No email to staff notifying her colleagues of the death of mother
- The non-processing of complaints the Complainant made against three members of management
- Trebling of her workload
Witnesses on behalf of the Respondent
At the hearing on 28thFebruary 2018, having considered the submissions made and the evidence proffered Mr Armstrong submitted that the Respondent had no case to answer and made the decision not to call witnesses. Therefore, he stated that the Respondent’s position on the appeal was advanced by way of the submissions made.
Conclusions of the Court
The Court had great difficulty in conducting this hearing due to the persistent disruptions by Mr Cullen and lack of orderliness. Notwithstanding, the Court has carefully evaluated the evidence tendered in the course of this appeal together with the extensive submissions made by the Complainant and those made by the Respondent as well as the documentation put in evidence.
As the Respondent decided not to call any witnesses, there was no requirment for a hearing on the second scheduled day, 1st March 2018.
- Time Limits and the Court’s Jurisdiction
Section 77(5) of the Acts provides as follows: -
- (a) Subject to paragraph (b), 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 occurrence of the discrimination or victimization to which the case relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.
- (a) Subject to paragraph (b), 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 occurrence of the discrimination or victimization to which the case relates or, as the case may be, the date of its most recent occurrence.
- (a) discrimination or victimisation occurs-
- (i) if the act constituting it extends over a period, at the end of the period,
(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and
(iii) if it arises by virtue of a provision which operates over a period, throughout the period,
- (i) if the act constituting it extends over a period, at the end of the period,
- (a) discrimination or victimisation occurs-
Mr Cullen contended that he could rely on incidences which occurred after the complaint had been presented in December 2012. It is clear from the statutory provisions that the time limit runs for a period of six months (or twelve months on extension) from the date of acts which are alleged to constitute discrimination or victimisation. Therefore, incidents which occurred after the complaint had been presented could not have been comprehended by the claim and could not be relied upon for the purpose of obtaining redress.
The Acts allow for circumstances in which acts of discrimination that occurred outside the normal time limit can nonetheless be relied upon provided the claim is submitted within the six months of the point in which the discrimination ended. Subsection (5) of section 77 provides for situations where there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum. Subsection (6) (A) provides that an act can be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on a complainantBarclays Bank plc v Kapur[1989] IRLR 387. There is, however, authority for the proposition that an act occurring after the presentation of the Complainant’s complaint may not be taken into account when determining whether there was a continuing act.
Consequently, as there are no alleged acts of discrimination prior to 11thJune 2012, the Court must examine the alleged acts of discrimination/victimisation which occurred within the six-month period before the claim was referred to the Equality Tribunal. The Court cannot consider alleged acts of discrimination or victimisation which occurred after the presentation of the claim as they could not have been comprehended by such a claim.
Mr Cullen submitted that the Respondent systematically ignored the Complainant’s grievances and that this discriminatory practice had a clear and adverse effect on the Complainant.
Net issues
There are two net issues that the Court must consider at the outset of this case, namely whether the condition from which the Complainant suffered at the material time was a disability within the statutory meaning ascribed to that term and if so, whether she suffered a detriment(s) as a result of that disability.
Furthermore, the Court must consider whether the Complainant was indirectly discriminated against and/or victimised within the meaning of Section 74 of the Acts.
The statutory definition of “disability” is contained at section 2 of the Acts provides: -
- "(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".
- "(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,
Mr Cullen maintained that under domestic law, conditions which are minor in nature are protected. He submitted that the law does not exclude temporary conditions from the definition of disability. Furthermore, he stated that it does not distinguish disability from sickness or illness. It expressly provides that an illness constitutes a disability.
At the material time the Complainant was medically certified as suffering from stress. Having examined the specialist reports produced for the hearing the Court notes that at the material time, neither of these Consultants examined the Complainant. Dr Noone carried out the examination of the Complainant on 21stMarch 2016 and Dr Lambe carried out his consultation with her on 2ndJune 2017. As these examinations took place in four to five years aftert he alleged acts of discrimnation , the Court is of the view that they are of no probative value to the appeal hearing before the Court.
The Complainant’s GP issued a report in October 2015 in preparation for the impending hearing before the Equality Officer /Adjudication Officer. It states that he examined the Complainant in June 2012 and found that she was suffering from high levels of stress and anxiety mainly due to her demanding workload; lack of proper resources in the Tubbercurry Health Centre and to her mother’s illness.
InA Government Department v, A WorkerEDA094, this Court held that:
- “The Court must take the definition of disability as it finds it. Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (seeBank of Ireland v Purcell[1989] IR 327). Nevertheless, no statute can be construed so as to produce an absurd result or one that is repugnant to common sense.
That common law rule of construction has now been given statutory effect by s.5(1) of the Interpretation Act 2005. It would appear to the Court that if the statute were to be construed so as to blur the distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other, it could be fairly described as an absurdity.”
- “The Court must take the definition of disability as it finds it. Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (seeBank of Ireland v Purcell[1989] IR 327). Nevertheless, no statute can be construed so as to produce an absurd result or one that is repugnant to common sense.
In relation to the definition of disability the Court noted that “is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is to be ascribed thereto. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded. Moreover, the classification of a condition, illness or disease as a disability is not limited by its temporal affect on the sufferer. This is clear from the definition which provides that it:-
- “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””
In that case, the Court expressed the view that there was considerable cogency in the Respondent’s argument that mere unhappiness or ordinary stress or disappointment which effects a person’s emotions could not be classified as a disability.
The condition relied upon by the Complainant in grounding her claim in this case is “stress” arising from her mother’s illness. While disability is broadly defined by the Acts each of the examples given in the Acts relate to malfunctions or abnormalities of the mind or the body. Stress caused by illness of a relative or loved-one is not an abnormality or malfunction. Rather, it is a normal human condition, not classified as abnormality or malfunction, and therefore not a disability within the statutory meaning ascribed to that term.
In these circumstances the Court cannot accept that the Complainant’s condition at the material time, when she was diagnosed as suffering from “stress” can amount to a “disability” for the purposes of the Act.
- Imputed/Associative Disability
While the Court has found that the Complainant did not have a “disability” at the material time, Mr Cullen also submitted that one was imputed to her and/or by association she was discriminated against on the basis of her mother’s illness.
Mr Cullen said that the Respondent imputed a disability to her by circulating details to all staff of each employee’s absenteeism and its cost to the Respondent which indicated that the Complainant had the highest level of absenteeism and was therefore a serious draining on the resources of the HSE. The Court does not find that the publication of the cost of absenteeism for all employees constituted an imputed “disability” as defined by the Acts, to the Complainant.
Mr Cullen said that the discrimination against the Complainant by the Senior PHN on the phone on 11th June 2012 was on the basis of associated disability. Secondly, he referred to the “retaliatory meeting of the 20th August was a result of the Complainant herein having to leave her area in an emergency circumstances relating to her mother's terminal illness”.
Direct discrimination on grounds of disability arises where a person is treated less favourably that another person, is, has been or would be treated in a comparable situation on grounds of disability (s.6(1) of the Act). Section 6(1)(b) expressly provides that discrimination can arise by association. Moreover, the decision of the CJEU inColeman v Attridge Law[2008] IRLR 722 makes it clear that associative discrimination on grounds of disability comes within the intendment of Directive 2000/78/EC, which the Act is intended to transpose in domestic law.
There is nothing in the evidence before the Court from which it could be inferred that the Complainant was treated less favourably by reason of her mother’s illness and therefore the Court finds that the Complainant’s case does not come within the ambit of associative disability as found by the CJEU inColeman v Attridge Law.
While the Court had found that the Complainant did not have a “disability” within the meaning of the acts, for the sake of completeness, the Court has proceeded to consider the question of causation between the Complainant’s stress, her mother’s illness and the treatment of which she complained.
- Burden of Proof
- Alleged detriment suffered by the Complainant
When asked to outline for the Court which aspect of section 8 of the Acts, the Complainant was relying on, Mr Cullen identified section 8(b) of the Acts. Mr Cullen stated the detriments relied upon by the Complainant were the building conditions she was required to work in; the telephone call on 11thJune 2012; the meeting on 20thAugust 2012; the non-handling of her grievance and the circulation of the email in November 2012 outlining her level of absenteeism.
Section 8 of the Act contains the general prohibition of discrimination. Section 8(1) provides: -
In relation to—
(a) access to employment,
(b) conditions of employment,
(c) training or experience for or in relation to employment,
(d) promotion or re-grading, or
(e) classification of posts,
an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.
Discrimination is defined at s.6(1) of the Acts as follows: -
- (1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds 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.
In order to come within this definition the conduct complained of must involve the process or manner of treating the Complainant which is less favourable than the process or manner in which some other person, not having the protected characteristic, is was or would be treated. Discrimination arises where a person is treated less favourably on “grounds of”, in this case, disability. Consequently, the fundamental question that arises in every claim of discrimination is why was a complainant treated as he/she was.
Having carefully considered all the circumstances of this case, Mr Cullen submitted that the Complainant was subjected to unfavourable treatment by management. On the contrary the Court notes that the Complainant was not subjected to any form of disciplinary sanction, she was never called to a disciplinary meeting, she did not receive any warnings, her terms and conditions of employment were not altered, she had no reduction in pay and she was paid the appropriate sick pay during her absence.
The Court is satisfied that the questions to which the Complainant took exception during the telephone call on 11thJune and at the meeting on 20thAugust 2012 were in the nature of management managing absenteeism and to ensure that the appropriate nursing cover was provided during her absence. In a letter furnished to the Court dated 14thSeptember 2012 the Acting Director of Nursing wrote to the Clinical Nurse Specialist to inform her that she had never been made aware that the Complainant was suffering from stress related to her work as a PHN in Tubbercurry and if she had done so she would have dealt with the issues in a supportive and confidential manner. She explained how she had had no opportunity to speak to the Complainant during her sick absence, as the Complainant never returned her phone calls and was refusing to meet with her. As the Acting Director of Nursing was concerned for the Complainant she contracted the Occupational Health Physician to request an appointment for her to ascertain her likely return to work date.
It would appear to the Court that the Complainant took grave exception to being questioned about her leaving the clinic on the previous Friday and to being questioned about her right to take leave due to her mother’s illness in the telephone call made to the Senior PHN on 11thJune 2012. It is clearly understandable that she was distressed about her mother’s illness, however, the Court cannot find any discriminatory aspects to the call as alleged. The reference to leaving the clinic and sick absence was directly related to the Complainant and not to her mother. The Court notes that the Complainant was not sanctioned in any way as a result.
The Court cannot find that being called to a meeting to discuss poor communication skills was in any way linked to discrimination on the disability ground within the meaning of the Acts, whether actual, imputed or associated. It was clear to the Court that the Respondent decided to call her to a meeting in August 2012 to discuss her non-communication and her likely return to work date in circumstances where she had been on a lengthy absence and where the Complainant had not spoken to any member of management and furthermore was refusing to take calls from management. The Court accepts that in that regard she was treated no less favourably than any other employee in similar circumstances. Furthermore, the Court notes that she was not subjected to any disciplinary sanction as a result. She had previously refused to attend absence related meetings and had not suffered any consequences as a result of her non-attendance.
The Court is of the view that an allegation of work related stress as a consequence of what the Complainant alleges were acts of discrimination - how she was treated on the telephone call and at the meeting in August 2012 – do not give rise to a cause of action under the Acts, but rather might possibly give rise to an action in tort,cf.Hatton v Sutherland[2002] andAn Employer v Mr. OEED0410 and EED0419. In order for there to be a cause of action under the Acts, there must be an act/omission on the employer’s part which resulted in a detriment being suffered by the employee, the Court is satisfied that no such facts were established in this case.
It seems clear on the evidence that the reason why the difficulties complained of by the Complainant arose was because the Respondent took the view that she had left her employment without prior notice or permission and due to her lengthy absence. It was not due to thereasonswhyshe was absent, it was not because she was stressed. There is no doubt that any person who acted in the same manner would have been similarly treated. That negates any casual connection between the condition relied upon and the treatment complained of. The Complainant may be of the view that such action by the Respondent was unmerited (abd the Court makes no such finding) but it was not discriminatory within the intendment of the Acts.
The Court is satisfied that the Complainant has not established any cause of action against the Respondent under the Acts, hence the Court had no jurisdiction to entertain the complaint.
- Indirect Discrimination
It is well settled that indirect discrimination arises where a provision, criterion or practice in relation to employment places persons who have a particular protected characteristic at a particular disadvantage relative to those who do not have that characteristic.
Mr Cullen did not identify any provision, criterion or practicecarried out by the Respondent which would have the effect of placing persons having a disability at a particular disadvantage.
As no provision, criterion or practice of the Respondent has been identified by the Complainant having a disproportionate adverse impact upon a protected class of persons (in this case, those with disabilities), the Court finds that the Complainant has not established facts to support a claim of indirect discrimination.
Victimisation
The Complainant contends that she was victimised in consequence of the complaint she made about the treatment she received from the Senior PHN on the phone on 11thJune 2012.
Victimisation is defined by section 74(2) of the Act as follows: -
- “(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
- (a)a complaint of discrimination made by the employee to the employer,
(b)any proceedings by a complainant,
(c)an employee having represented or otherwise supported a complainant,
(d)the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,
(e)an employee having been a witness in any proceedings under this Act orthe Equal Status Act 2000or any such repealed enactment,
(f)an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or
(g)an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.
- (a)a complaint of discrimination made by the employee to the employer,
- “(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—
This section of the Acts is based on Article 11 of Directive 2000/78/EC on“Equal Treatment in Employment and Education”(The Framework Directive). Both the Acts and the Directive provide that victimisation occurs where a detriment is imposed on a worker‘as a reaction to’a complaint or other protected act. The use of the expression ‘as a reaction to’ connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision. The wording of section 74(2) of the Act comports fully with this provision of the Directive.
In order to make out a claim of victimisation under the Act it must be established that: -
- i. The Complainant had taken action of a type referred to at section 74(2) of the Acts (a protected act),
ii. The Complainant was subjected to adverse treatment by the Respondent, and,
iii. The adverse treatment was in reaction to the protected action having been taken by the Complainant.
- i. The Complainant had taken action of a type referred to at section 74(2) of the Acts (a protected act),
Section 74(2) of the Acts provides, in effect, that victimisation occurs where a person is subjected to adverse treatment as a reaction to,inter aliaa complaint of discrimination, the bringing of a complaint under the Acts. In this case, the Court is of the view that the letter makes a complaint of alleged bullying, harassment and is more in the nature of a health and safety complaint, than a complaint of discrimination. The Court has no jurisdiction under the Acts to hear a complaint of that nature. Moreover, at that particular time there were no proceedings in being under the Acts, therefore the Court finds that subsection (b) of the section 74 has no application in this case.
Therefore, in the Court’s view the facts as presented do not come within the ambit of a protected act and consequently do not come within the intendment of Section 74(2) of the Acts.
Determination
The Court finds that the Complainant was not a person with a disability at the material time.
The Court finds that the Complainant has no cause of action against the Respondent and her claims of discrimination against the Respondent cannot succeed.
The Court finds that the Complainant has failed to make out aprima facieclaim of indirect discrimination.
The Court finds that the Complainant has failed to make out aprima facieclaim of victimisation.
The Court, accordingly, determines that the Complainant’s appeal fails. The Decision of the Equality Officer/Adjudication Officer is upheld accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
30 April, 2018.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.