Complainant

Respondent

Anonymised Parties

Catering Assistant

Health Service Provider

Representatives

Mr Neal Horgan BL instructed by Carmel Best , Best & Co Solicitors

Conor White Comyn Kelleher Tobin

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00057868-002

17/10/2023

The Complainant is employed as catering assistant now but was formally employed as a health care assistant with the Respondent. She worked for the Respondent for a period of 24 years. The Complainant was obliged to take a (second) COVID vaccine due to the COVID-19 pandemic. The Complainant took the vaccine but submits she has suffered health complications since then, with her main condition being myocarditis, which is inflammation of the heart muscle that can reduce the heart’s ability to pump blood. The Complaint has been seen by a number of medical experts, however, the Occupational Health service with the Respondent has refused to authorise the early retirement of the Complainant. The Complainant’s case is that this refusal constitutes discrimination on the grounds of disability under the Employment Equality Acts 1998-2015 (“the Act”), and furthermore she has been subject to victimisation under the Act.

The Respondent submits it has not treated the Complainant less favourably to any other person in relation to the application process for ill health retirement. The Respondent further asserts it has not taken any action which could reasonably be described as victimisation as against the Complainant.

Respondent Out-of-Time Preliminary Application:

The Respondent contends the Complaint was dated 24 September 2023 and was received by the WRC on or about 27 September 2023. The Complainant was referred to the Respondent’s Occupational Health Department for the purposes of an Ill Health Retirement application with Dr C on 10 January 2023 and again with Dr B on 2 February 2023. Both specialists formed the opinion that the Complainant did not meet the criteria for the Respondent’s Ill Health Retirement scheme. The Respondent argues the Complaint was submitted more than eight months after the assessment of Dr B. The Respondent submits that this is outside of the cognisable period within which a complaint pursuant to Section 77 of the EEA may be considered. The Respondent that Section 41(6) of the Workplace Relations Act, 2015 states complaints must be made to the WRC within 6-months of the alleged contravention. The Respondent contends the Complainant has attempted to extend this period by reference to an Occupational Health assessment relating to the Respondent’s Temporary Rehabilitation Remuneration (TRR). The Respondent submits that this is entirely separate to the Complainant’s application for retirement on Ill Health grounds and cannot therefore be justified as a cause of action within the cognisable period.

I am satisfied this matter relates to the continuing refusal of the Respondent to grant ill-health retirement; therefore, I deem the cognisable period for examination to be up to, and inclusive of the date of submission of complaint to the WRC which was 27 September 2023.

Dr B, Occupational Health Consultant for the Respondent stated in evidence that the Complainant was referred to her as part of an “independent” process of a second opinion. She explained that she worked in a different geographical jurisdiction with the Respondent, and her role was to assess, as a second opinion, whether the Complainant was eligible for early retirement. The Complainant was already deemed to be ineligible by the Occupational Health Consultant in the Complainant’s geographical area.

The witness said matters for consideration by her at the presentation on 2 February 2023 included the history of employment of the Complainant, presentations to date, two previous specialists’ reports, past medical history, and social family history for medical conditions. She accepted there was no physical medical examination involved but a review of the documentation to date, as outlined in the foregoing.

The witness said the Complainant raised her voice and was aggressive during the presentation. She felt extremely uncomfortable and said she had never experienced a patient presentation like it in her present role. She observed that the Complainant showed no sign of breathlessness, nor did she show an incapacity in physically making her way to the consultation room.

The witness said the outcome of the presentation was that she could not say that the Complainant was permanently incapacitated to the extent that she was eligible for early retirement on health grounds. She referred to the Complainant’s consultant Dr C’s report of 15 November, where he stated that the Complainant had not maximised all remedial treatments available to her.

In cross-examination the witness accepted that she was not “independent” in the extent of being outside the employ of the Respondent but was considered a second opinion from a different geographical area, which is the custom and practice within the Respondent organisation.

Regarding the later medical reports, since the presentation in February 2023, and where a stress test dated 18 September 2023 from Dr C  indicated no improvement in her physical capacity, she opined that if this was hypothetically received by her prior to the presentation of 2 February 2023, she would have noted it but it would not have changed her opinion that there was no indication the Complainant would never improve.

The witness accepted in cross-examination that the wording of the regulation in her area, which she relied upon as a measure to determine whether the Complainant was entitled to early retirement, was different to that relied upon by the Respondent as the official version in this case. However, whilst she believed the wording to be different, she maintained both versions essentially said the same thing.

Legal Argument:

It is the Respondent’s submission that the Complainant has not formally alleged discrimination. The Respondent submits that the Complainant has not provided sufficient information to meet the standard required to shift the burden of proof in respect of discrimination to the Respondent.

The Respondent cites Section 85A(i) of the Actsdeals with the burden of proof and refers to Southern Health Board v. Mitchell Labour Court AEE/99/8 where the Labour Court explained that the onus on the complainant in seeking to establish a prima facie case is:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination.”

The Respondent further cites Melbury Developments Ltd v. Valpeters EDA 0917 [2010] ELR 64the Labour Court stated as follows:

“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.”

The Respondent further cited Minaguchi v. Wineport Lakeshore Restaurant DEC-E/2002/20 where the criteria set out by the Equality Officer was as follows: facts were defined by the Equality Officer as follows:

“It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are:

That s/he is covered by the relevant discriminatory ground(s);

That s/he has been subjected to specific treatments; and

That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

The Respondent contends the Complainant has not identified a comparator for the purposes of evidencing any party who is being treated more favourably to her and cites A National School v. A Worker ADE/15/7, where the Labour Court held that a complainant is entitled to rely on a hypothetical comparator who would have been treated more favourably on account of being of a different or no religion. It is respectfully submitted that the Complainant cannot rely on such a comparator as no such comparator exists, either in fact or hypothetically.

RESPONSE TO SUBMISSIONS OF THE COMPLAINANT

 The Complainant has alleged that the reports of the Respondent’s Occupational Health specialists amount to discrimination and / or victimisation. The Respondent points to Section 29of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012 (“the Regulations)which sets out the following: -

“(3) Where a Scheme member retires or is retired on medical grounds, a benefit under subsection (1) or (2), as the case may be, shall only be paid where the following conditions are met:

(a) medical evidence shall have been supplied which satisfies the relevant authority that—

(i) the Scheme member has a current ongoing medically recognised physical or mental health condition that is likely to be permanent and enduring,

(ii) that condition permanently renders the member medically incapable of regular and effective service in their current occupation or grade, and

(iii) reasonable medical treatment options and practicable changes to working arrangements (including, in exceptional cases, outside the Scheme member’s current occupation or grade) which would enable or facilitate continued service by the member have been examined and are not considered practical,

(b) due to that ongoing medically recognised physical or mental health condition, the retirement is necessary, and

(c) when—

(i) first taking up a post, position, office, or appointment in a public service body,

or

(ii) subsequently, taking up another such post, position, office, or appointment,

the Scheme member did not make a false declaration about his or her health

or suppress any material fact about his or her health.”

 The Respondent submits that the Occupational Health Assessments of the Complainant merely followed the requirements of Section 29 above and cannot therefore reasonably be described as discriminatory.

Request for Information:

 On 20 December 2024, the Respondent’s solicitors received a letter with a request for information pursuant to Section 76(1) of the Act. (exhibited).The Respondent disagrees with the assertion at paragraph 3 of the Request, alleging discrimination/victimisation as the medical evidence from the occupational health assessment conducted on behalf of the Respondent did not support the application for retirement on the grounds of Ill Health.

 The Respondent further notes that the letter lacks any evidence to support the allegation that other employees with less serious conditions have been treated more favourably that the Complainant. The Respondent contends that this allegation is baseless. The letter also alleges that the Complainant is being victimised due to her allegation that her medical condition was linked to or resulted from a vaccination for Covid 19. The Respondent submits that this allegation is again without evidence or substance. The Respondent afforded the Complainant with its normal application procedure for ill health retirement and the occupational health specialists who assessed the Complainant determined that she did not meet ill health retirement criteria.

The Respondent submits that the request for information in the manner described, represents an abuse of process. The Respondent argues the Complainant has failed to provide any valid comparator and is now requesting that the Respondent trawls through its nation-wide records to furnish a report on medical records for a period of five years. The Respondent declines to pursue such an exercise in circumstances where the Complainant has not identified a comparator and is now trying to procure a report which the Respondent deems to be entirely inappropriate and unduly burdensome on the Respondent.

In conclusion, the Respondent submits that the Complainant has failed to provide any evidence which might reasonably infer that discrimination has occurred. The Respondent argues the Complainant is instead aggrieved at the recommendations of the occupational health specialists and has categorised their recommendations as discriminatory rather than accept their clinical opinions.    

The Complainant gave evidence that she was “bullied” into taking the COVID vaccine during the pandemic, but said she had no choice on the matter. Shortly having the vaccine administered, she presented at her G.P.’s practice with chest pains, palpitations, and breathlessness. She was taken by ambulance to the nearest general hospital. On 14 February 2022 she was diagnosed by her specialist, Dr C, with myocarditis and was put on a course of beta blockers. She went on sick leave in February 2022 and subsequently applied for early retirement on ill health grounds. She had a phone consultation with the local Occupational Health consultant, Dr D, who told her she did not meet the criteria. She asked for a second opinion and was referred to Dr B, in a different geographical area. The witness said because she had to take rest periods, the journey lasted four hours. With reference to Dr B’s evidence, she said that the short walk on a flat corridor that formed part of her assessment, was not reflective of the reality of her day-to-day work when she was expected to push and pull food trollies. She said that Dr B did not ask her about the type of work she conducted. On the allegation of being aggressive and raising her voice with Dr B, she said that she normally spoke in an extremely high voice. She felt that Dr B was dismissive towards her, and she was of the opinion “that it was all sewn up” between the doctors, meaning that she felt Dr B’s decision had already been made before her presentation. She also felt that Dr B was not qualified to assess her because she was not a cardiologist.

She mentioned a comparator, Ms A, whom the witness described as a friend of hers who told her that her that her (Ms A’s) heart was working fine, but Ms A said had she got a heart complaint she felt she would have been eligible for early retirement. The witness accepted that Ms A is still in employment with the Respondent. The witness was asked as to when she first told the Respondent that she was taking a case of discrimination, she relayed a conversation she had with her manager in June 2023.

Legal Argument:  

The Complainant was examined  by a number of medical experts (reports exhibited) and the Complainant submits  that, in the context of all of the medical reports relating to the Complainant, including that of the Complainant’s Consultant Cardiologists, the Complainant has been discriminated against and/or victimised by the Respondent in its failure, refusal or neglect to allow the Complainant’s retirement on ill health grounds under the terms of S.29 (3) of the Public Service Pensions (“the Regulations”) as exhibited. The Complainant contends she clearly meets the criteria set out in the Regulations as evidenced in particular by the reports of the two Consultant Cardiologists who examined the Complainant as well as the Complainant’s own GP.

The Act provides at 6(1) 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 Complainant submits that she has been discriminated against in comparison to her fellow employees and/or (in the absence of a comparator) by a hypothetical comparator employee in their respective application to retire on ill health grounds even though they may be suffering from medical conditions that were not as serious as the medical conditions from which the Complainant is suffering. As such the Complainant is alleging discrimination on the basis of disability arising from her diagnosis of suffering from, amongst other things, myocarditis.

 The Complaint cites a comparable case as that being  The Department of Justice, Equality and Law Reform v William Kavanagh [2012] 23 E.L.R. 34  where the Labour Court (while finding for the Department in matters unrelated to the facts of this case) ruled that the complaint relating to alleged discriminatory treatment on grounds of disability for, inter alia, not allowing the employee’s early retirement on ill health grounds  came under the Act.

 Without prejudice to the above, the Complainant submits that she has been treated less favourably than another would have been if in a comparable situation, that is, the Complainant relies upon a hypothetical comparator: the Complainant refers to Bolger, Bruton, Kimber: Employment Equality Law, 2nd edition, 2022, paragraph 8-136 where it states:

“The Complainant the comparator can be actual or hypothetical, as the complainant can by virtue of an (2)(2)(a) of the Framework Directive argue that he or she has been treated less favourably than another would have been if in a comparable situation. In Perry v Garda Commissioner, the Equality Officer used the device of a hypothetical comparator to assess the effect of a criterion which it was alleged was discrimination; In that case, the claimant, who was, argued that a severance package paid to her was substantially less favourable than a severance package paid to a colleague of hers in a similar situation, but who was younger at 59. In Cox v RTE [2012] 23 E.L.R. 34 - permitted to use two contractors—that is, those without the same employment status as she had—as comparators to show that other workers had been allowed to work beyond (“Equal Treatment Framework Directive 2000/78/EC) “.

The Complainant submits that she meets the criteria for victimisation pursuant to 74(2) of the Act. The Complainant became ill after she took the COVID Vaccine in July 2021. The Complainant submits that the Respondent have not fairly administered or dealt with the Complainant’s application for Retirement on ill health grounds because her ill health is related to a consequence of taking the COVID Vaccine in July 2021 which the Complainant was mandated to take by the Respondent. As such the Respondent, even with full sight of the Complainant’s medical reports from her medical experts (including, at this point, the reports of two consultant cardiologists) all of which recommend that the Complainant be retired on ill health grounds—has failed, refused, or neglected to allow the Complainant’s application to retire on ill health grounds and this amounts to victimisation.

Request for Information:

 In regard to a person in a comparable situation, the Complainant has sought information from the Respondent in respect of Comparators. The Complainant has specifically requested on the 18 December 2024 information from the Respondent in respect of Comparators pursuant to S. 76(1) of the Employment Equality Act, 1998 and S.I. No. 321/1999 - Employment Equality Act; 1998 (S.76 - Right to Information) Regulations, 1999 on grounds of discrimination/penalisation, but has not received a response form the Respondent to this Request. S. 81 of the Act deals with Consequences of failure to supply information as follows:

 81) —If, in the course of proceedings on a reference under section 77(a) or of an investigation under section 79, it appears to the Circuit Court F141 for the Director General of the Workplace Relations Commission as the case may be—

 (a) that the respondent failed to supply information which the complainant sought by questions under section 76, and which was in the respondent’s possession or power, or

 (b) that the information supplied by the respondent in response to any such question was false or misleading or was otherwise not such as the complainant might reasonably have required in order to make the decision referred to in section 76(f), the Circuit Court F141 or Director General of the Workplace Relations Commission (as the case may require) may draw such inferences as seem appropriate from the failure to supply the information or, as the case may be, for the supply of information as mentioned in paragraph (b).

The Complainant submits that the WRC should draw inferences as seem appropriate from the failure of the Respondent to reply or provide responses to the Request of the Complainant pursuant to Section 76 of the Act. The Complainant contends that in the circumstances outlined, such inferences would amount, at a minimum, (and in addition to the points made below in respect of the Burden of Proof) to a shift in the burden of proof from the Complainant to the Respondent in respect of proving that the failure to allow the Complainant to retire on ill health grounds does not amount to discrimination and/or victimisation.

The Complainant accepts that the Complainant bears the initial burden of proof as between the parties, however, S. 85A (i) of the Act 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 to the contrary.”  The Complainant asserts that the continued failure of the Respondent to allow the Complainant to retire on ill health grounds pursuant to the terms of the Regulations in the context of the contents and diagnoses within the Complainant’s medical reports, including those from Consultant Cardiologists are such facts from which it may be presumed that there has been discrimination and therefore it is for the Respondent to prove to the contrary.

 Further and in the alternative to the foregoing, the Respondent opens Brodigan t/a FB Groundworks v Dubina HSD/0810 where it was stated:

  “It is, however, settled law that in civil matters there is an exception to this rule known as the peculiar knowledge principle. This is a rule of evidence which provides that where it is shown that a particular fact in issue is peculiarly within a defendant’s knowledge the onus of proving that fact rests with the defendant (see Mahoney v Waterford, Limerick and Western Railway Company [1900] 21.R. 273, per Pallas C.B.).

The Respondent further cites  Paul O’Neill v Toni & Guy Blackrock Limited [2010] ELR 21 where the Labour Court said:

“In the instant case what is at issue is the motive or reason for the Claimant’s dismissal. That is to be found in the thought process of the decision-makers at the time the decision to dismiss the Complainant was taken. That is something which is peculiarly within the knowledge of the Respondent. It would be palpably unfair to expect the Claimant to address direct evidence to show that the Respondent was influenced by his earlier complaints in deciding to dismiss him. Conversely, it is perfectly reasonable to require the Respondent to establish that the reasons for the dismissal were unrelated to his complaints under the Act.”

 The Complainant contends that the comparator information in this case is critical to resolving the matters in dispute and is exclusively within the Respondent’s knowledge—invoking the "peculiar knowledge principle"—the obligation lies with the Respondent to disclose it. As the Respondent has  failed to do so thus far, the Complainant asserts the Adjudication Officer should infer that the burden of proof in relation to whether discrimination occurred shifts to the Respondent.

The Complainant further asserts that the Respondent’s denial of ill-health retirement must reflect a genuine decision by a reasonable employer who has undertaken a comprehensive evaluation of the medical evidence—something the Complainant alleges has not been done.

The Complainant refers to Kerr’s Annotated Legislation The Employment Equality Act, 1998 Section 16, LB.142A :

“ In Shannon Regional Fisheries Board v A Worker EDA 182013, the Labour Court said that the general principles set out in Humphries require an employer to make a bona fide and informed decision concerning a disabled employee’s capabilities before concluding that he or she is unable to perform the duties of their employment. The test was an objective one “to be applied by reference to the range of responses to be expected of a hypothetical reasonable employer, faced with similar circumstances, seeking to reach a fair and balanced conclusion having full regard to the right of a disabled person to work and earn a livelihood within the constraints occasioned by their disability”. At a minimum, it required the employer “to fully and properly assess all of the available medical evidence and, where necessary, to obtain further medical advice where the available evidence is not conclusive”.

The Complainant submits that from the above case law – that it is for the Adjudication Officer to decide – using an objective test – whether the Respondent has made a bona fide and informed decision on the Complainant’s ability to remain at work (albeit in a different role/with different duties) and when doing so the Adjudication Officer should refer to a range of responses of a hypothetical reasonable employer faced with similar circumstances – which required (at a minimum) the hypothetical employer to fully and properly assess all of the medical evidence and if necessary obtain further medical advice.  The Complainant contends the Respondent has not carried out a full assessment of the Complainant’s medical condition as required in the circumstances, or at all.

The Complainant submits that the Respondent was not seeking to provide reasonable accommodation to the Complainant – rather it was seeking to provide a new job which was merely for the purposes of refusing the Complainant retirement on ill health grounds. The Complainant refers to the quote of McMenamin J.  of the Supreme Court in Nano Nagle School v Marie Daly (Appellant) and Irish Human Rights & Equality Commission  [2019] IESC when he stated “It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment is reasonable accommodation in the job, or whether, in reality, what is sought is an entirely different job. Section 16(1) of the Act refers specifically to “the position”, not to an alternative and quite different position.

The Complainant submits she was discriminated against on the grounds of disability, when she was not allowed to avail of early retirement, though she believes that the nature of her disability warranted such retirement. The Complainant also claims she was victimised by the Respondent on the grounds of disability. It was not contested in this case that the Complainant had a disability, as defined under section 2 of the Act.

Section 6, of the Act, in its relevant Parts, describes discrimination on the grounds of disability:-

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) 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) (in this Act referred to as the “discriminatory grounds”) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

…(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”)…”

Section 74(2) defines victimisation:-

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 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 or the Equal Status Act 2000 or 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 or 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.

(3)For the purposes of sections 77, 78, 83, 87 and 90 the date on which a case is referred, or an appeal made, under those provisions is the date on which the reference or appeal is received by the Director General of the Workplace Relations Commission, Labour Court or Circuit Court, as the case may be.

In deciding whether the Complainant was discriminated against on the grounds of her disability, I must examine whether the refusal to allow the Complainant to avail of the early retirement scheme was discriminatory, and further, whether the Respondent engaged in victimisation as defined under the Act.

The burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground cited. Section 85A of the Act states as follows:

(1) 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the [Director General] under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant 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.”  

 When considering the primary facts adduced by the Complainant I must take into consideration any contrary evidence of the Respondent, when determining whether the burden of proof should shift . In the Labour Court case of Dyflin Publications Limited v Spasic EDA0823, it was stated that: -

“….the Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant”.

The Complainant submitted that the failure of the Respondent to provide information as requested under section 76 of the Act was enough for me to draw an inference from such a refusal as to justify the burden of proof, in the first instance, to shift to the Respondent. I find it is important to note the content of the “peculiar knowledge “request which reads as follows:

I hereby request non-confidential records from you in respect of the medical conditions of employees (without the necessity of confidential details such as the names of the employees etc.) whose applications under the Public Service Pensions (Single Scheme and Other Provisions) Act, 2012 and/or retirement applications on medical grounds have been successful and who suffer from the following conditions and/or a combination of the following conditions and other conditions (which I have been diagnosed as suffering from) for a period of five years prior to the date of this request : (a) Myocarditis (b) Hypertension (c) Chest Pain Syndrome (d) Ventricular Hypertrophy (e) Other medical conditions of a similar nature and/or related to (a, (b) and (c) above.

The applicable sections of the Act are sections 76 and 81.

 Section 76 provides: -

(1) With a view to assisting a person (“X”) who considers—

(a)that another person (“Y”) may have discriminated against X in contravention of this Act or may have dismissed or otherwise penalised X in circumstances amounting to victimisation,

(b) that another person (“Y”) who is responsible for providing remuneration to X is not providing that remuneration as required by an equal remuneration term, or

(c) that another person (“Y”) with whom X has a contract of employment has not provided X with a benefit under an equality clause in that contract, to decide whether to refer the matter under any provision of section 77 and, in the event of such a reference, to formulate and present X's case in the most effective manner, the Minister may by regulations prescribe forms by which—

(i) X may question Y so as to obtain material information, and

(ii) Y may, if Y so wishes, reply to any questions.

(2) Subject to subsections (3) to (7), information is for the purposes of this section “material information” if it is—

(a) information as to Y's reasons for doing or omitting to do any relevant act and as to any practices or procedures material to any such act,

(b) information, other than confidential information, about the remuneration or treatment of other persons who stand in relation to Y in the same or a similar position as X, or

(c) other information which is not confidential information or information about the scale or financial resources of the employer's business and which, in the circumstances of the case in question it is reasonable for X to require.]

(3) In subsection (2) “confidential information” means any information which relates to a particular individual, which can be identified as so relating and to the disclosure of which that individual does not agree.

(4) Nothing in this Act shall be construed as requiring Y or any other person-

(a) to furnish any reference (or any copy thereof or extract therefrom) or any report (or copy thereof or extract therefrom) relating to the character or the suitability for employment of any person (including X), or

(b) to disclose the contents of such a reference or report.

(5) In a case where a person considers that he or she may have been discriminated against by, or in the course of an interview conducted on behalf of—

(a) the holder of a recruitment licence under the Public Service Management (Recruitment and Appointments) Act 2004 in the course of a recruitment or selection process, other than one designed to recruit or select only from and for the holder's own staff,

(b) …],

(c) the Minister for Defence in the course of a recruitment process for the Defence Forces, or

(d) the Commissioner of the Garda Síochána in the course of a recruitment process for the Garda Síochána, information shall not be regarded as material information for the purposes of this section if it relates to communications with external advisers to any of the persons referred to in paragraphs (a) to (d) or if it goes beyond the permitted information specified in subsection (6).

(6) For the purposes of subsection (5), in relation to a recruitment or selection process, information is permitted information if it identifies the successful and the unsuccessful candidates—

(a) by reference to their sex, or

(b) in terms of the discriminatory grounds in section 28(1), by reference to those who have the same relevant characteristic as C or the same relevant characteristic as D.

(7) This section is without prejudice to the other provisions of this Act relating to the obtaining of information.

Section 81 provides:-

If, in the course of proceedings on a reference under section 77(3) or of an investigation under section 79, it appears to the Circuit Court [or the [Director General]], as the case may be—

that the respondent failed to supply information which the complainant sought by questions under section 76 and which was in the respondent's possession or power, or

(b) that the information supplied by the respondent in response to any such question was false or misleading or was otherwise not such as the complainant might reasonably have required in order to make the decision referred to in section 76(1), the Circuit Court or the Director General (as the case may require) may draw such inferences as seem appropriate from the failure to supply the information or, as the case may be, for the supply of information as mentioned in paragraph (b).

The Respondent said no to the request, saying it was a misuse of the process. They argued that the Complainant hadn’t given any proper comparison and was now asking them to dig through records for 36,000 employees across the whole country—just to pull together a report on medical records over five years. The Respondent refused to do this, on the basis no valid comparator was named. They contended that the request was inappropriate .

There’s already a clear rule—the “peculiar knowledge rule”—that says if one side has better access to certain information, they might be expected to provide it. But even that rule doesn’t mean you can make inordinate, burdensome demands. In this case, the Complainant was basically asking the Respondent to do a complete search through thousands of files just to help prove their own case. That’s not reasonable—it’s more like “a fishing expedition”, a practice generally frowned upon by the courts.

Section 76 makes it clear: requests should focus on specific, relevant, and necessary evidence. This one didn’t—it was vague and speculative. On top of that, it raised serious concerns around privacy and data protection, especially since it involved sensitive personal data, which section 76 also doesn’t allow. So, in short, I find that the request was speculative, excessive, and too intrusive. The Respondent’s refusal to answer under these circumstances doesn’t mean I can shift the burden of proof onto them.

Dr B gave convincing evidence in this case that the practice adopted by the Respondent’s Occupational Health specialists is applied across the board in a consistent fashion, regardless of disability nor on any other ground under the Act. The plain fact of the matter in this case is that both specialists found in a transparent and reliable manner that no evidence was available to them to suggest that the Complainant would never improve. The Complainant was obviously unhappy with this outcome and asserted that she was treated unfairly. The Complainant cited unfairness and lack of thoroughness, e.g., in the suggestion that a cardiologist and not an occupational health specialist should be the ultimate arbitrator on her condition. It is not my role to evaluate the quality or audit the Respondent’s service in this specific area other than to ensure that the application of the policy and assessment is not discriminatory. Therefore the post February 2023  documentary evidence from other doctors had no bearing on the fundamental issue to be decided in this case i.e. that the Complainant was treated less favourably to a worker without a disability, or to one with the same or different disability.   The Complainant relies on cases e.g., Shannon Fisheries, Nano Nagle, which deal specifically with the obligation of employers under the “Reasonable Accommodation” section 16 of the Act, to adopt a proactive approach in removing barriers and making adjustments to the work environment or structure, in order that disabled individuals are placed in a similar position to their non-disabled counterparts. The situation in the instant case is diametrically different. There is no request for reasonable accommodation in this case - instead, a request for an exit from the organisation- therefore there is no departure from the obligation on the Complainant to provide primary facts in the first instance to show traditional forms of anti-discrimination which require identical or neutral treatment.

 The Complainant ultimately relied on mere speculation which was unsupported by evidence to the extent that no hypothetical comparator could be meaningfully envisaged.  As pointed out by the Labour Court in Valpeters such speculation or assertions cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Therefore, having reviewed the evidence and submissions, I am satisfied that the Complainant did not make out a prima facie case of discrimination on the grounds of refusal to allow early retirement.

Furthermore, the Complainant gave no meaningful evidence of victimisation as described under section 74(2) of the Act.

For the reasons outlined above, I find that the Complainant did not make out a prima facie case of discrimination, nor victimisation, and I therefore decide that she was not discriminated against under the Act.

Employment Equality Acts 1998-2015, Discrimination, Early Retirement, Disability, Prima Facie Case.