ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00005772
A quality control assistant
A grocery retailer
Mr Michael Hegarty, Reddy Charlton Solicitors
Ms Claire Bruton, instructed by McDowell Purcell Solicitors
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 04/12/2017
Workplace Relations Commission Adjudication Officer: Catherine Byrne
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, this complaint has been assigned to me by the Director General. I conducted a hearing on December 4th 2017 and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaint.
The complainant was the only witness on her side and she was represented by Mr Michael Hegarty of Reddy Charlton Solicitors. The respondent was represented by Ms Clare Bruton BL, instructed by McDowell Purcell Solicitors. The Employee Relations Manager and the Quality Assurance Manager attended the hearing and gave evidence for the respondent.
The complainant is a qualified food processing engineer and joined the respondent company as a quality control assistant in December 2009. In February 2014, her role changed to that of purchasing assistant / quality control, for which she was paid a salary of €37,600.
Having become pregnant in 2010, the complainant suffered a miscarriage. Sadly, she had another miscarriage in 2011 and in December 2012, she commenced invitro fertilisation treatment (IVF). A series of IVF treatments was unsuccessful, concluding with another miscarriage in January 2016. However, at the hearing, the complainant informed us that she became pregnant in December 2016 and had a baby girl on September 14th 2017.
The complainant alleges that she has been discriminated on the grounds of disability as she claims that her employer failed to provide reasonable accommodation for her to manage her fertility problems. The accommodation she sought was that she wanted to report to a different manager, as she complained that she was being bullied by her own manager.
The complainant has been absent due to illness since August 20th 2015 and is currently on unpaid sick leave.
Infertility as a Disability
For the respondent, Ms Bruton submitted that infertility is not a disability and does not fall within the conditions prescribed in section 2 of the Employment Equality Acts 1998 – 2015 (“the Acts”). In support of this, she referenced the European Court of Justice case of Z v A Government Department where it was held that a refusal to provide paid maternity or adoptive leave to a “commissioning mother” in a surrogacy arrangement, does not constitute discrimination within the meaning of the Employment Equality Framework Directive 2000/78/EC.
The complainant claims that her difficulties conceiving and carrying a baby to full term is a disability. In support of this contention, Mr Hegarty quoted the World Health Organisation’s clinical definition of infertility as:
“a disease of the reproductive system defined by the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse.”
This complaint was submitted to the WRC on November 4th 2016. On behalf of the respondent, Ms Bruton submitted that, in accordance with section 77(5) of the Acts, the relevant period for which I can assume jurisdiction is from May 5th 2016 until November 4th 2016. On the complaint form, the most recent date of discrimination is stated to be October 19th 2016; however, the complainant submitted no evidence of any event that occurred then on that date.
It was evident at the hearing that there has been no contact between the complainant and her employer since February 17th, 2016, when she had a meeting with the employee relations (ER) manager, who informed her that her job remains open for her. The respondent’s position is that any potential act of discrimination “crystallised” on February 17th 2016, as this is the most recent date on which discrimination could be alleged to have taken place. As that date is more than six months prior to the date that the complaint was received by the WRC, it was submitted that the complaint is out of time.
For the complainant, Mr Hegarty argued that it is not appropriate to focus on just one event and he claimed that the discrimination is ongoing, as the company has failed to allow the complainant to transfer to a role reporting to a different manager. He also argued for an extension of time, as the complainant was unable to engage with the company to process her grievance as she was advised that this could impact on the outcome of her IVF treatment.
Consideration of the Preliminary Issues:
Infertility as a Disability
“Disability” is defined in section 2 of the Acts as:
“(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 illness or disease,
(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, perceptions of reality, emotions or judgements 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.”
In the European Court of Justice case of Z v a Government Department, referred to by the respondent, the Court ruled that “a refusal to provide paid leave equivalent to maternity or adoptive leave to a female worker who is unable to bear a child and who has availed of a surrogacy arrangement does not constitute discrimination on the ground of disability.” The facts in the case of Ms Z are materially different to the complaint being investigated here. More importantly, there was no argument about the concept that Ms Z, who was unable to bear a child, suffered from a disability. The Court simply found that discrimination did not occur when she was denied maternity or adoptive leave.
The complainant said that she suffered from infertility, which happily, was resolved when she became pregnant in December 2016. From the perspective of the definition set out in the Acts, I am satisfied that, for this complainant, she suffered from a disability, as infertility could be said to result from a malfunction of a part of a person’s body as set out at section 2(c) above.
Section 77(5)(a) Acts sets out the time-frame within which a complaint must be referred to the WRC:
“Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates, or, as the case may be, the date of its most recent occurrence.”
Paragraph (b) provides that where there is “reasonable cause,” there may be an extension of the time limit from six to 12 months.
A brief chronology will provide the context for the submission of this complaint:
August 19th 2015
The complainant’s manager instructed her not to wear a blouse that she regarded as inappropriate in the workplace. When the complainant reported this to the ER manager, the manager agreed that her blouse was not suitable for work. At this meeting, the complainant told the ER manager that she was undergoing IVF treatment. She went absent the next day and submitted a medical certificate stating that she was suffering from stress.
August 24th 2015
The complainant made a formal complaint about her manager, alleging that she had been verbally abused, that her confidence had been undermined and that there was a lack of consistency in how the rules were applied in the department. The letter did not contain any reference to discrimination and did not seek accommodation regarding the fact that she was going through IVF. On August 26th, the ER manager replied confirming that the complaint would be investigated by a manager from a different department.
September 25th 2015
The complainant attended for a consultation with the company’s occupational health practitioner (OHP) and in a letter dated October 2nd, the OHP stated:
“From a purely medical perspective, I think she is fit for work and a return to work could take place with immediate effect. In tandem with this, it will be necessary for her to address her workplace grievances. I understand she has submitted a formal complaint and certainly I think from a medical perspective she is fit to participate in such a process. Indeed, it might be argued that this would be to her advantage to get a resolution to her difficulties at the earliest opportunity.
“My sense however, is that her non-work-related and personal issues will be a significant factor in her decision-making in this regard. Even though I believe she is fit for work and fit to engage in a HR/IR process, I think it is inevitable that her own doctors will strongly discourage such an approach on her part and they will support her ongoing absence from work.”
October 23rd 2015
A meeting was arranged between the ER manager and the complainant to discuss this report. At the meeting, the complainant said that she did not want to engage in the grievance procedure directly or in writing and she wasn’t interested in mediation. In her evidence, the ER manager said that the complainant said that she wanted to take some time out, and the ER manager said she would contact her in January.
February 3rd 2016
When she phoned the complainant in January, the ER manager learned that she had had another miscarriage. On February 1st, the complainant contacted the ER manager and they arranged to meet on February 3rd.
In her evidence at the hearing, the ER manager said that, at this meeting, the complainant asked if there was a possibility of being moved to another role. In her own evidence, the complainant said, “my background is in quality,” and she said that wanted to remain in a quality-related role. The ER manager said that the complainant suggested that, in the absence of a suitable role, she would be willing to exit the company on an agreed package. The complainant disputed this and said she never asked for a severance package.
February 17th 2016
At a follow-up meeting, the ER manager confirmed that there was no quality-related role outside the quality department to which the complainant could be appointed. She encouraged the complainant to engage in the grievance procedure to resolve her complaint about her manager. In her evidence, the ER manager said that she told the complainant that there was no possibility of a severance package but that she could apply for any suitable vacancy advertised on the company’s careers portal. The ER manager said that, having heard what her options were, the complainant said that she would get legal advice.
In her evidence, the complainant said that she stopped IVF and went for acupuncture and she became pregnant in December 2016.
May 5th 2016
The ER manager phoned the complainant on February 24th and May 3rd, but got no answer. On May 5th, the complainant phoned to say that she had engaged a solicitor and would communicate through her solicitor from now on.
May 23rd 2016
The complainant’s solicitor, Mr Hegarty, wrote to the ER manager, and among a number of issues, alleged that the complainant had been subjected to bullying and harassment by her manager. The letter concluded:
“The purpose of this letter is to put you on notice that unless (name of the respondent) makes satisfactory proposals to resolve this matter within 14 days from the date hereof, our instructions are to take whatever steps are necessary to protect our client’s interests.”
It is apparent therefore, that, in May 2016 at the latest, the complainant was in a position to instruct her solicitor and had the benefit of legal advice.
Was the Complaint Submitted on Time?
The respondent proposed that February 17th 2016 is the latest possible date on which discrimination, if it occurred, could be said to have occurred. For the purpose of determining if the complaint has been submitted on time, I concur with this proposal. February 17th 2016 is the last date on which the complainant was informed that the only area of the business where she could be employed in a quality-related job was the quality department itself. To comply with section 77(5)(a) of the Acts, the complaint should have been submitted before August 16th 2016. As it was submitted on November 4th 2016, it is outside the time limit.
Application to Extend the Time Limit to 12 Months
Section 77(5)(b) provides that “for reasonable cause” there may be an extension from six to 12 months, within which to lodge a complaint. The established test for deciding if an extension should be granted is set out in the Labour Court case of Cementation Skanska (formerly Kvaerner Cementation) v Carroll, DWT0338. Here, the test for reasonable cause for extending the time limit to 12 months was set out as follows:
“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say, it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present, he would have initiated the claim in time.”
On behalf of the complainant, Mr Hegarty said that the cause of the delay was because the complainant was advised by her doctors not to participate in resolving her grievance or to engage in mediation while she was being treated for IVF. Letters from two medical consultants were submitted in evidence, one of which referred to the recommendation of the complainant’s gynaecologist that the complainant take time off work. In his letter of April 18th 2016, the gynaecologist expressed two opposing opinions when he stated:
“This ongoing absence from work can contribute to her stress levels.”
In the next line, referring to “difficulties she was experiencing at work,” he said:
“Until this resolution is found and the treatments are ongoing, I will be continuing to advise (name of the complainant) to abstain from work.”
The gynaecologist appears to acknowledge that being out of work is a cause of stress, but that being in work might affect the outcome of the IVF treatment. Apart from the fact that the complainant told us in evidence that she ended IVF in March 2016 and this letter is dated April 18th, the only advice is to “abstain from work” and even this is qualified. No evidence was presented that the complainant was so incapacitated between February and August 2016 that she was unable to submit a complaint to the WRC.
It is understandable that the complainant may have decided that her IVF treatment was a more critical priority than resolving her grievance about her manager. However, by March 2016, she had finished IVF and in May, she instructed her solicitor to “take whatever steps are necessary” to protect her interests. Taking the Cementation Skanska test as the standard, the explanation that the complainant was advised by her doctors to remain out of work while she was undergoing IVF does not provide a reasonable excuse for the delay submitting her complaint. As she had engaged a solicitor, with his support, it is my view that she was capable of submitting a complaint. In addition, the “causal link” referred to in Cementation Skanska is absent, because the IVF treatment which is presented as the reason for the delay does not explain why the complaint was not submitted after March and before August 2016, when the complainant was not undergoing IVF.
Mr Hegarty submitted that the discrimination is ongoing and relates to the failure of the respondent to identify an alternative role for the complainant. He disagreed with the respondent’s proposition that discrimination, if it occurred, “crystallised” on February 17th 2016.
Section 77(6A) of the Acts provides that:
“For the purposes of this section –
(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…”
For our purposes, the relevant section is (i) above, which provides that if an act of discrimination extends over a period of time, the end of the period is the relevant date.
Rejecting the claim that discrimination is ongoing, Ms Bruton referred to the Labour Court decision in Hurley v County Cork VEC, EDA 1124, where in respect of section 77(6A), the Court stated:
“Under subsection (6A), an act will be regarded as extending over a period, as 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 a clear and adverse effect on the complainant (Barclays Bank plc v Kapur  IRLR 387. This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an employer pursues a policy or practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the policy or practice is discontinued. Hence an aggrieved party could maintain a claim in respect of acts or omissions which occurred in pursuance of the policy or practice regardless of when the act or omission occurred.”
Referring to the decision of the adjudicator in Finlass v An Post, DEC-E2017-017, Ms Bruton submitted that the outcome is consistent with Hurley v County Cork VEC. In January 2007, Mr Finlass moved from night work to a day job, as he had been suffering from depression, which he attributed to working nights. One of the outcomes of moving to the new job was that his salary was reduced from €580 to €518 per week. He referred his grievance to an internal monitoring group and in 2012, his salary was restored on a “personal to holder basis” with effect from November 1st 2011. Mr Finlass claimed that between 2007 and 2011, he suffered a loss in income of €19,000 and that this constituted ongoing discriminatory treatment. Although Mr Finlass claimed that his loss had not been remedied and was therefore continuing, the adjudicator found that the date on which the company decided not to provide the remedy he sought was the relevant date.
Returning to the complaint in hand, the decision of the respondent on February 17th 2016 to inform the complainant that there was no job outside the quality department that she could be assigned to is, as in Finlass, a stand-alone decision. It is my view that, while the outcome of the decision may be unpalatable, the discrimination complained of, if it occurred, cannot be said to be ongoing or part of a continuum.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
It is my view that the explanation put forward by the complainant does not constitute a reasonable cause for the delay in submitting her complaint on time. In addition, I do not accept the argument that discrimination, if it occurred, was ongoing. On this basis, I conclude the investigation and find against the complainant.
Dated: 20th March, 2018.
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Extension of time, ongoing discrimination, IVF