Complainant

Respondent

Parties

Paul  McNamara

Occipital Ltd.

[Amended on Consent]

Representatives

Self-represented

IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00063007-001

22/04/2024

The Complainant filed a WRC complaint on 22/04/24 alleging discrimination on the basis of disability under the Employment Equality Act 1998, in relation to promotional opportunity, in October 2023, which he says was denied to him on the basis that he was off on a period of long-term sick leave of twenty-seven (27) months’ duration between 2020 and 2022. He further outlined in the complaint form that he had received no sick pay pertaining to a four (4) month period cover April through July 2022, which he submits is discrimination on the basis of disability also.

The Respondent denies all the Complainant’s claims.

It submits that the Complainant does not have a disability within the meaning of the Employment Equality Act 1998, and further that he never put the Respondent on notice of same.

In respect of the allegation pertaining to sick pay, it submits that it falls outside the cognisable period.

In relation to the application for a promotion, it submits that the Complainant has never applied for a promotion with it, but rather currently works for it and is placed with a client company, and what the Complainant applied for was a direct employment opportunity with the client company. It further submits that the opportunity does not constitute a promotion – that the job title is the same.

At the hearing, the Complainant clarified that his case against this Respondent was with respect to a period of unpaid sick leave in 2022. He explained that he had had a workplace accident and had been out of work on paid sick leave. He said that during the medical investigations pertaining to his workplace accident, it came to light that he also had atrial fibrillation (‘A-fib’), which is what he is identifying as his disability.

The Complainant outlined that he started working for the Respondent company in January 2017. He had a workplace accident in May 2020 and was out of work for twenty-seven (27) months following that. He outlined that he was paid for twenty-two (22) months of that. His pay was stopped on 1/4/22. [Reviewing the documents submitted, it appears there was litigation in relation to that workplace accident which concluded in March 2022.]

The Complainant was notified by email (copy of the email submitted), subsequent to a phone call, that his sick pay was due to be stopped from 1/4/2022.

He said that he contacted the Respondent, and told them that he was ‘seeing a cardiologist’, and that he ‘should be deemed fit for work fairly soon.’ He asked if they could they arrange an appointment with Occupational Health.

The Complainant said that he obtained a letter from his cardiologist in the first week of May 2022. He said the employer said they did not receive it. He said the letter was sent to the company’s headquarters in Ballintemple. The Complainant outlined that he got the letter sent again from his cardiologist, but this time he got his cardiologist’s secretary to send it to him, and he then forwarded it on to his employer himself. (Copy of the letter submitted)

His Consultant Cardiologist, by letter dated 6/5/22, says of the Complainant: ‘He has had several clinical reviews and non-invasive investigations and I would consider him now fit to return to work.’

The Complainant said that it was the first week in August 2022 when he was back in work fulltime and he got paid. He explained that he went back doing full duties and back fulltime.

The Complainant queried the length of time it took for his employer to arrange an appointment with Occupational Health. The Complainant asserts that he ‘wasn’t paid for four months because I was still seeing a Cardiologist.’

The Complainant submits that the atrial fibrillation (‘A-fib’), which is what he is identifying as his disability resulted from the injury he suffered at work. [The Respondent denies this claim in its entirety, submits that the Complainant does not have a disability within the meaning of the relevant legislation, that it was not put on notice by the Complainant of any disability, and submits that this was identified in the Occupational Health doctor’s report as an unrelated medical condition separate to the injury which resulted from the accident, and in any event, the Complainant was certified as being fit for work both by his own Cardiologist and by the Occupational Health physician.]

The Complainant also outlined his position in relation to his applying for a job with the client company. He said that he went for that in approximately September/October 2022. He said it was a full-time permanent position. He was unsuccessful in that application.

He said that he was told by his team lead (in his current role) in the Respondent company that ‘under no circumstances would I be looked at for two years, in terms of promotion’ due to the fact that he had been off on sick leave as a result of the accident. He said that he ‘kept on emailing in relation to this’, that his ‘own Solicitor emailed them on three (3) occasions’ but that he received ‘no response.’

He emphasised that he ‘didn’t want it to come to this’ [in terms of filing a case with the WRC].

The Adjudication Officer enquired of the Complainant as to what he was seeking. He said: ‘I’d be happy to get my four months’ pay back.’ He expressed the view that he had missed out on other things - bonuses, extra pay etc. but that he was not looking for any of that, as part of this complaint.

On Cross-examination

The Complainant was questioned in relation to the Cardiologist’s letter, which he said had been sent twice. He clarified that it had been sent by hard copy and to which address (the company’s headquarters) despite the fact that he had been communicating with his employer by email, text messages and Whatsapp throughout his period of sick leave. He explained that his doctor told him that a hard copy would be required. He outlined the sequence of events in terms of his employer stating it had not received it, and him seeking a second copy from his doctor’s secretary and sending it on to his employer directly himself.

He was asked on what date he formally disclosed his disability to the Respondent? In relation to this, the Complainant was relying on his email communications with his employer in April 2022, in which he told his employer that he was seeing a cardiologist and thought he should be fit for work soon.

The Occupational Health report was put to him. It was put to him that the Occupational Health assessment took place on 24/6/22, and that he was certified as fit to work with no restrictions. (A copy of the report was submitted)

The Complainant was asked what his disability was. He submitted that it was atrial fibrillation (A-fib) brought on by a work accident. The representative for the Respondent emphasised that this was entirely denied by the Respondent, and pointed to the Occupational Health report identifying a ‘non-related’ medical condition. The report sets out that the Complainant was ‘noted to have a non related medical problem which was found incidentally and was treated appropriately. He is well in this regard.’ The Complainant expressed the view that Occupational Health ‘would not give you a disability. It’s my own Cardiologist would give me that.’ It was put to him that ‘nobody would give you a disability.’ [Illness is measured against the definitions in the Employment Equality Act 1998 when determining if a person has a disability for the purpose of the Act.]

The Complainant outlined that all of this happened during Covid and lockdown, and that there were delays with him receiving medical appointments as a result. He explained that, in the ordinary course, ‘this should have been all done well in advance’ but that he was ‘only getting appointments as they came up’ [time delays due to Covid] and that as he received his appointments, he notified his employer of them.

It was put to the Complainant that, in any event, he had been certified fit for work both by his own Cardiologist and by occupational health, with no requirement for any restrictions, in 2022.

In relation to the issue of promotion, the email the Complainant sent dated 22nd November 2023 was put to him. The timeline of events was explored with him, as his WRC complaint form was filed in April 2024. He submitted that he went for the job in September 2023 and was told that he was not getting the job in October 2023. He was asked when he became aware that he was not successful for the job. He said that he spoke with the Respondent on the telephone and asked for feedback and there was no feedback.

It was put to Complainant that he applied for the job with a client of the Respondent, which he was entitled to do, but it was put to the Complainant that what he had applied for was not a promotion, that the salary is the same. The Complainant said that in the new role he had applied for there were bonuses, and other ancillary benefits such as health insurance. It was put to him that the title of the role ‘Production Associate’ was exactly the same, which he accepted. It was put to him that the only difference was the employer. He said that for him, ‘coming in as a contractor [currently] but getting a permanent full-time job is getting a promotion.’

It was further put to him that the recruitment process was with the client company, not the Respondent, and that the Respondent acts only in an administrative capacity in respect of it. He was asked to clarify what he was seeking, in respect of this WRC complaint. He said to the representative acting on behalf of the Respondent ‘as regards your clients – sick pay.’ The Complainant said that he thought both names, the client company and the Respondent were listed as respondents on the complaint form.

The Complainant particularly objected to the delay and further submitted that there were ‘people hired in June [2022] and I wasn’t part of that. How do you explain that?’

It was put to him that coming back to work after someone has been absent for two (2) years, induction is required, and that he had been notified of that. The Complainant accepted that.

It was put to him that there really had not been much, if anything, of a gap considering that the date of the Occupational Health Assessment was 24th June 2022, that the report had to issue, and that allowing for a few days to liaise etc. and for induction had to take place, and that he was back working full-time at the start of August 2022.

The phone call with YW was put to him, in which the Complainant raised a number of issues. It was put to him that YW followed up with an email and by providing him with a copy of the grievance procedure. (A copy of the email, dated November 2023, was submitted.) He said in relation to the issue of bullying, that he was advised by a team lead that to raise a grievance would ‘hurt me going forward.’ He also expressed the view, in relation to a relative of his, that he felt he was ‘stopping [name redacted] getting a job.’ He said that was ‘a personal thing and I still feel that.’

Mindful that the Complainant was unrepresented, the Adjudication Officer at the hearing, clarified for the Complainant that discrimination means less favourable treatment on the basis of a protected ground (disability) as compared against someone who does not possess that protected characteristic; and asked him if there was anything further he wished to say in support of his case. The Complainant reiterated that he did not want to take a WRC complaint, that he wanted ‘to resolve this between us.’ He was asked about the grievance policy that had been sent to him, and that he had been invited to submit a grievance in line with it, if he wished to do so. He said that ‘filling out a grievance form – I didn’t think anything would come of that.’ He expressed the view that the employer had ‘played for time’ and that they had ‘got their time’ in relation to the four (4) month timeframe between when his paid sick leave ceased and when he returned to work.

The WRC received post-hearing correspondence from the Complainant, asserting that an application had been made for anonymisation of the parties on behalf of the Respondent and that the Complainant was strongly objecting to same. It was clarified that no such application had been made by either party and that there is no legal basis for the anonymisation of the parties to this action.

Summary of the Respondent’s written submissions

Occipital Ltd. is a provider of recruitment, staffing and outsourcing and the provision of managed services for various sectors throughout Ireland. The Complainant commenced employment as a Production Associate with the Respondent to work at a client company on 11th July 2016. Since the commencement of his employment, the Complainant has never applied for a promotion with the Respondent. In his complaint form, the Complainant alleges that he has been discriminated against in respect of a promotion, on the basis of a disability in November 2023.

On the Complainant’s complaint form, the Complainant has also provided details pertaining to of the cessation of sick pay in 2022 and alleged a comment made by an unspecified Team Lead upon his return from work, also in 2022. The Respondent denies the Complainant’s complaints. 

Preliminary issue – the cognisable period and scope of the Complaint

The Complainant submitted his complaint to the WRC on 22nd April 2024. It is therefore submitted that the cognisable period for this complaint runs between 23rd October 2023 and 22nd April 2024.

It is submitted that the events complained of by the Complainant fall outside the cognisable period, with the exception of receiving the outcome of his application for a permanent role with the client company, in which he was unsuccessful.

The events complained of, as against the Respondent company comprise:-

1.      The Complainant applied for and was unsuccessful in securing a permanent role with the client company (not the Respondent company). On 10th November 2023, the Complainant contacted YW, Associate Director, to relay his dissatisfaction at not being successful in his application for a permanent role with the client company. YW advised the Complainant that any issues he has should be addressed in line with the grievance policy. [A copy of the grievance policy was submitted.]

2.      The Complainant had advised that allegations of bullying and harassment had been dealt with informally, but was advised that: -

‘In the event there are ongoing or new issues arise I would ask that you bring it to our attention immediately, bullying and harassment allegations are taking extremely seriously and will be fully investigated.’ 

3.      The Complainant also referred to a conversation with his Team Lead regarding permanency, upon his return to work after a period of leave in 2022, to which he was advised that:

‘In relation to your point regarding conversations with your team lead and permanency this should be also raised as a grievance in the same format as above for [company name] to review.’

The Complainant never applied for a promotion with the Respondent company

It is further submitted, that the Complainant has never applied for a promotion with the Respondent. It is submitted that it  appears that this complaint is misconceived when the complaint form refers to a promotion. It is the view of the Respondent that the Complainant is referring to the permanent role in the same capacity, that the Complainant applied for with the client company. The Respondent submits that the role the Complainant applied for was not a promotion, but the same role working directly for the client company as a permanent employee. He already was and continues to be employed as a permanent employee of the Respondent. It is further submitted that the Respondent has never relayed to the Complainant, nor advised the Complainant, that his absence in 2022 would impact his ability to apply or be successful in interviewing for a permanent role with the client company.

For context, the Respondent submits that the assessment centres for direct hire roles with the client company, are managed entirely by the client company and any third-party providers they use as part of their own recruitment process. The Respondent’s involvement is limited to supporting its client in communicating with our employees who are taking part in the process. In that regard, the Respondent issue all communications to the contingent workers on how to book their assessment slots, whether they are successful or not and how to book their interviews. The Respondent has also been requested by the client company to share the feedback provided to it on individual performance at the assessment centre after the process is completed. The Respondent is not involved in the scoring of the assessment centres nor has any involvement in the selection criteria. For completeness, the Respondent is aware that the client company employs the services of a third-party supplier [Name Redacted], and it manages the assessment on behalf of the client company. The Respondent submits that its involvement in this process is merely as an administrative function.

It is submitted that all other events and allegations pertaining to this complaint are outside the cognisable period. The cessation of sick pay was in April 2022, and the allegations of comments made by a Team Lead were made subsequent to the Complainant’s return to work in 2022.

The Law

Potential Extension of the Cognisable Period

The Respondent refers to s. 41(6) and s. 41 (8) of The Workplace Relations Act, 2015, and to the Labour Court decision of Cementation Skanska (Formerly Kvaerner Cementation) V. Carroll when determining ‘reasonable cause’, as set out in the legislation, and further refers to the High Court decision of Donal O’Donnell and Catherine O’Donnell V. Dun Laoghaire Corporation [1991] ILRM 30, wherein it was stated that “in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the Plaintiff has to show (and I think the onus under O. 84 r. 21 is on the Plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

The Respondent is relying upon the dicta in Brothers of Charity Services Galway v Kieran O’Toole [EDA 177], wherein the Court determined: ‘’The Court cannot accept that deploying the Respondent's internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limit provided under the Acts.”; and further to the case of High Court in Minister for Finance v. Civil and Public Service Union & Ors [2006] 1 IR 254, in which it was reiterated that: ‘’The Court is of the view that it is a fundamental principle that ignorance of one’s legal rights and responsibilities does not provide a justifiable excuse for a failure to bring a claim in time or to the appropriate body’’.

Events form part of a ‘continuum’ (some within and some without) a cognisable period?

The Respondent refers to the Labour Court decision in Cork County VEC v Hurley, EDA1124, in considering a contention that events which occurred outside the cognisable period for the complaint made, could be considered as part of a regime or continuum and thus within the jurisdiction of the Court. The Court in that case determined that: “The Court must conclude that no acts capable of constituting victimisation occurred in the period of six-months ending on the date on which she presented her claim to the Equality Tribunal. Accordingly, even if the Complainant’s case were to be taken at its height in relation to all other incidents relied upon, they are outside the time limit prescribed by s.77(5) and are statute barred.” The Respondent further refers to the Labour Court case of Cisco Systems Internetworking (Ireland) Limited v Olumide Smith, EDA1829, wherein it concluded: “The Court therefore, consistent with its approach in Cork County VEC, must first consider whether an act or acts of discrimination occurred within the cognisable period for the within complaint, before it can consider whether events outside of that period can be considered to be part of a continuum or regime of discrimination and within the jurisdiction of the Court. It is only if the Court forms such a conclusion that it can consider events which occurred prior to the cognisable period.”

Determination of a preliminary matter

The Respondent cites the case of Employee v Employer UD969/2009, in which in light of the significant preliminary points raised, the Employment Appeals Tribunal (EAT) heard the preliminary matter first and reach a decision on same. The Respondent further relies upon the case of Bus Eireann v SIPTU PTD048/2004, in which the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case “where it could lead to considerable savings in both time and expense.” The Respondent also refers to ADJ-00045374 Rajesh Hamal v Musgrave Retail Partners, in this regard.

Respondent’s Position

The Respondent has never formally been put on notice of a disability in respect of the Complainant, and on that basis could not have discriminated against the Complainant in respect of same, under any circumstances. 

It is common case that the Complainant was absent for a work-related injury between 27th May 2020 and July 2022. The Complainant furnished the Respondent with a Consultant Letter confirming his fitness to work on 18th May 2022. (A copy of the letter was submitted.) The Complainant attended Occupational Health on 24th June 2022. A copy of the Occupational Health Report has been submitted and sets out as follows:-

“Reason for Assessment 

Medical Assessment to assess his fitness for work. Mr. McNamara reports that he is absent from work on certified sick leave after an alleged incident at work in May 2020 He reports that he sustained an injury to his left chest wall and lower abdomen. He had a number of investigations in this regard which were reassuringly normal. He was noted to have a non related medical problem which was found incidentally and was treated appropriately. He is well in this regard.

Recommendation

Following his medical examination and assessment today, it is my opinion that he is fit for work without restriction.

Follow up

I have not arranged to see him again for another review however, I will be more than happy to do that upon request.

If there are any questions arising out of this report please do not hesitate to contact me.”

The Respondent submits that the Complainant was advised that there may be a delay due to the need for him to attend induction as is common practice for all employees engaged with the client company where absences have exceeded six (6) months for any reason. Inductions are scheduled every two (2) weeks, generally. The Complainant returned to work on 11th July 2022.

Between the Complainant’s return to work and his submitting of his WRC complaint, no medical certificates were provided by the Complainant to the Respondent, which put the Respondent on medical notice of a disability as defined under the Act.

The Employment Equality Act 1998 defines “disability” means—

(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;

The Respondent refers to SWAN O’SULLIVAN ACCOUNTANTS & REGISTERED AUDITORS V. Seamus Counihan EDA1810, in which the Labour Court enquired specifically about the Complainant’s alleged diagnosis of epilepsy. The Complainant could not give precise details and told the court that it was a “default” diagnosis following his seizure, and tests had ruled out other possible conditions. The Complainant argued that the diagnosis was obvious from the seizure he experienced and the medication he was prescribed. The Respondent submitted that it was not aware the Complainant suffered from epilepsy until the matter was referred to the WRC. His absences from work consisted of “a day here or there”. On his return to work, and at periodic performance assessments, management expressed concern as to his wellbeing and he told them that he was fine. He never supplied the Respondent with a medical certificate, contrary to his employment contract and repeated requests to do so. Furthermore, having had regard to the HighCourtjudgment of Somers V. W (1979) IR 94, and the particular facts of the case before it – the Complainant had discussed his health situation with colleagues - the Labour Court concluded that the doctrine of constructive notice of the Complainant’s disability did not apply in the circumstances. The Labour Court determined that the Complainant had not been diagnosed with epilepsy. It found that at no point had he supplied his employer with a medical certificate, nor did he discuss the management of his condition with his manager or colleagues other than to say that the seizure he suffered was a one-off occurrence, and despite queries being made regarding his health he was reluctant to discuss it. The Court did not dispute that if the Complainant had epilepsy, this would almost certainly have come within the broad definition of disability under the Employment Equality Acts 1998-2015 (the “EEA”). However, it found in that case that the Respondent “could not have had direct or constructive knowledge to indicate” that the Complainant “was suffering from an illness that amounted to such a disability”.

Section 85A of the Employment Equality Acts 1998 to 2015 requires the Complainant to present facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The Respondent is citing the Labour Court case of Southern Health Board v Mitchell, DEE011, [2001] ELR 201, in this regard wherein the Court states: “The first requirement is that the complainant 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 Complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.” It further relies upon the case of Margetts v Graham Anthony & Company Limited, EDA038, where the Labour Court set out that: “The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Respondent submits that direct discrimination consists of less favourable treatment on the basis of a protected ground (in this instance disability) [as compared against a comparator] and that the Complainant’s allegations are grounded on vague and inaccurate assumptions.

The Respondent submits that the Complainant was treated fairly and the same as all other employees, in line with the Respondent’s policies and standard operating procedures in place with the client company, and that he has failed to establish a prima facie case of discrimination.  

Closing submission on behalf of the Respondent

The Respondent’s representative said he wished to highlight the preliminary issues. He highlighted the cognisable period, which runs October 2023 – April 2024. He highlighted that the Complainant had returned to full time work in August in 2022, without any restrictions, having been certified fit to work by both his own cardiologist and the Occupational Health doctor, and that the Complainant’s case against the Respondent pertained to the period April 2022 – July 2022 inclusive. He submitted that the case was therefore statute-barred.

In relation to the allegations around promotional opportunity, he submitted that a promotion had never applied for ‘in the true sense.’ He said that an opportunity arose where there were permanent roles with the client company available, and that the first step in that application process was a particular type of assessment, in which the Complainant had been unfortunately unsuccessful on that occasion. He submitted that workers on long term sick leave are advised that those permanent roles exist, as they come up: He submitted that ‘that’s how the Respondent works, that’s how the client works.’

In relation to the Complainant’s allegation that the grievance was ‘about delaying things’, he refuted this, saying it had been dealt with very promptly, that YW, of the Respondent, sent the email as a follow up to a phone call, when the issues were brought to her attention.

Cognisable Period & Sick pay

I find that the events complained of – not paying the Complainant sick pay for four months (April 2022 through July 2022) - against this Respondent, fall outside the cognisable period of this WRC complaint which was filed in 22/04/24.

Promotion

It is accepted by the Respondent employer that the outcome of the assessment for direct employment with the client company falls within the cognisable period of this WRC complaint.

In terms of the substance of the complaint, I find the Complainant has not established that he has a disability, within the meaning of the Employment Equality Act 1998, nor that he notified his employer of same. As of 6/5/22, his own Cardiologist certified him as being fit for work and on 24/6/22, the Occupational Health doctor did the same, stating that he was fit for work with no restrictions.

I further find that the job for which the Complainant applied was not with the Respondent employer.

I find for the Respondent.

I find that the complaint pertaining to sick leave is out of time. The relevant period, to which the complaint pertains runs from April 1st until the start of August 2022, while the WRC complaint was filed on 22/4/24.

I find that the Complainant has not established that he has a disability, within the meaning of the Employment Equality Act 1998, nor that he notified his employer of same. He therefore has failed to establish a prima facie case under s. 85A of the Employment Equality Act. As of 6/5/22, his own Cardiologist certified him as being fit for work and on 24/6/22, the Occupational Health doctor did the same, stating that he was fit for work with no restrictions. The Complainant returned to work, as of the start of August 2022, fulltime and with no restrictions, to the same role he held previously.

I further find that the job for which the Complainant applied was not with the Respondent employer. I find in relation to the job application, that the Complainant’s current employer, i.e. this Respondent, is not the company to which he applied for a job in October 2023.

I therefore find that the Respondent has no case to answer.

Discrimination; Disability; Promotional opportunities; Out of time; Incorrect Respondent; No prima facie case;