Complainant

Respondent

Parties

Karen  Gorman

Donegal Education And Training Board

Representatives

Boyce Kelly Solicitors

Ibec

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-00066023-001

16/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00066023-002

16/09/2024

The complainant, Ms Karen Gorman, is an employee of the respondent, Donegal Education and Training Board, and is alleging discrimination under the Employment Equality Act on the grounds of disability, specifically relating to failure to provide reasonable accommodation and victimisation under the Act.

The claim under the Sick Leave Act 2022 was withdrawn at the commencement of the hearing.  Evidence was given under oath/by affirmation by Ms Gorman, the complainant and Ms Doherty, the HR Manager for the respondent.  All evidence was subject to cross examination.  All submissions received from either party were considered by me.

The complainant is a teacher in the employment of the respondent and has been on sick leave since September 2019 due to post traumatic stress disorder, depression and work related stress.  The respondent has discriminated against the complainant insofar as the respondent has;

•                 Not acknowledged the complainant’s sick certificates

•                 Not referred the complainant for medical assessment as required under Circular 0013/2024

•                 Not referred her for medical assessment despite their occupational assessor advising them to do so

•                 Not responded to, or acknowledged, the complainant’s application to job share

•                 Not made any attempt to provide reasonable accommodation for the complainant’s disability

•                 Not ensured that the complainant received staff alerts since 16th May 2022 which include internal promotion opportunities.

The complainant has been discriminated against on the grounds of disability.  Further she has been victimised by the Respondent as a result of taking a personal injuries action against the respondent.

In An employee v An employer (2005) E.L.R. 132 the Labour Court held ant an psychiatric injury was a disability.  PTSD is a recognised psychiatric disorder.

Preliminary Issue (1)  Parallel Proceedings 

 The Respondent received a High Court Personal Injury Summons dated 2nd June 2020. This Summons contains a number of allegations including breaches of statutory codes. The Complainant is seeking damages for personal injuries, loss, damage, inconvenience and expense sustained by the Complainant and occasioned by the negligence and breach of duty, including breach of statutory duty, and breach of contract by the Respondent.

This duplication of proceedings is the issue for the Respondent. The Respondent would ask the Adjudicator to look to the case of Morgan v Irish Horse Welfare Trust [2014] ELR 41 which usefully dealt with the issue of parallel or duplication proceedings. In the case cited the EAT took the view that the Complainant was making an artificial distinction between the two actions and both actions arose from the same allegations. It adjourned the case pending the resolution of the High Court case.

In Henderson v Henderson (1843) 3 Hare 100 the rule was developed which prevented duplication of proceedings and which provided there should be finality to litigation (subject to appeal) and that a party should not be twice vexed in the same manner.

The Respondent would argue that these are the same circumstances as in this case today and that the hearing should be adjourned pending the resolution of the Hight Court Case.

Preliminary Issue (2)  Time Limits

The Respondent submits that this claim is out of time.  In her WRC Claim Form the Complainant has selected and alleges that she was discriminated against by the Respondent in respect to a number of different grounds, as follows;

 I have been discriminated against by reason of my disability.

The Respondent treated me unlawfully by discriminating against me and giving me training.

The Respondent treated me unlawfully by discriminating against me and victimising me.

The Respondent treated me unlawfully by discriminating against me and failing to give me ‘reasonable accommodation’ for a disability.

The Respondent treated me unlawfully by discriminating against me in conditions of employment.

The respondent discriminated against me because I am taking a personal injuries claim.

The Respondent treated me unlawfully by discriminating against me in other.

 In the Complainant’s Complaint Form and/or her submission she has failed to identify the last date upon which this alleged discrimination occurred in respect to any of the grounds stated above.  However, the Complainant fails to indicate any alleged incident or the dates upon which these alleged incidents occurred.

 The Complainant lodged her complaint under the Employment Equality Act to the Workplace Relations Commission on 16th September 2024 and therefore it is incumbent on the Complainant to set out the exact dates upon which the alleged discrimination referred to above actually occurred. In the absence of the Complainant detailing any alleged instance of discrimination within the period of six months prior to the Complainant lodging her complaint to the WRC then the Respondent submits that this claim is out of time and that the Adjudication Officer does not have jurisdiction to hear any alleged complaint which arose prior to the 16th of March 2024 and as a result such matters are statute barred.

Substantive issue.

The Complainant alleges discrimination by the Respondent on the grounds of disability. It has been the well-established practice of the Equality Tribunal and the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory grounds cited.

The Labour Court in Southern Health Board v Mitchell, [2001] ELR 201 Court stated:

“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”.

In Margetts v Graham Anthony & Company Limited, EDA038  the Labour Court stated as follows:

“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 complainant has not produced any evidence that such discrimination occurred and has failed to name a comparator against which such alleged unequal treatment may be judged. Furthermore, she has not set out how this alleged unequal treatment influenced the behaviour and decision making of the Respondent such that it resulted in the complainant being the victim of discrimination. The Respondent submits that the complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

The complainant specifically submits that she was suffering from a disability in accordance with Section 2(e) of the Act.  The only evidence provided in respect to any medical condition provided is in respect to medical certificates which refer to “Post Traumatic Stress Disorder with Depression” and “Anxiety caused by work related stress”. No evidence has been provided or furnished at any time to establish any facts upon which the complainant has been medically or clinically diagnosed as having a disability.

It is quite clear from a brief examination of case law on what constitutes a disability that the 3 different jurisdictions (i.e. Ireland, UK, EU) with different legislation differentiate between what is termed disability and what is termed common sicknesses, ordinary stress or disappointment and reactions to adverse circumstances or life events. It is also evident from case law that disability connotes some form of impairment or malfunction – ‘physically’ or ‘mentally’. Regarding, conditions or illnesses that constitute within the meaning of the Act, obviously, it helps tribunals and courts to make this distinction when there is a degree of precision and certainty where medical evidence is concerned.  To date the complainant in this case has not provided any evidence in regards any medical diagnosis which can be clinically regarded as a disability.

It is the Respondent’s position that the true construction of disability within the meaning of Section 2(e) of the Act constitutes a named clinically diagnosed condition as opposed to ‘stress’ and/or ‘anxiety’ which are self-evidently part of the human experience of everyday life – both good and bad.  Further, a disability must result in some degree of malfunction or impairment, and this must result in hindering the individual from full participation in professional life. Again, no medical diagnosis or evidence has been provided by the complainant in respect to this. The Respondent submits that the grounds advanced by the Complainant in this case do not constitute a “disability” within the meaning of the Act. Further, the Respondent also submits that the complainant did not have a named disability nor was the employer on notice of any such disability at any time during the complainant’s employment; hence they had no reasonable cause to have her assessed by their occupational health physician on a disability ground.

The Respondent contends that the complainant has failed to establish a prima facie case of discrimination in that she has not provided any evidence to demonstrate that she was treated less favourably than any other employee on the grounds specified. Furthermore, the complainant has failed to provide details of any comparator on which she wishes to rely.  It has been the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he or she was treated less favourably than another person is, has or would be treated, on the basis of the discriminatory ground cited. It is only when he/she has discharged this burden that the burden shifts to the Respondent to rebut the inference of discrimination raised. The complainant was treated no less favourably than anyone else and has failed to demonstrate how any actions taken, or not taken, by the Respondent are related to any of the discriminatory grounds cited in the complainant’s Complaint Form.   

The complainant has alleged that she was discriminated against and victimised by the Respondent at work due to the fact that she was taking a personal injury case against her employer and also due to her sick certificates not being acknowledged.

The respondent does not acknowledge receipt of medical certs from any staff.

Donegal has one administrator managing OHS referrals for all staff. It is accepted by the Respondent that the implementation of the new attendance/sick leave system caused a delay in the monitoring and processing of leave absences including sick leave and a delay in processing OHS referrals for staff.

The complainant has not set out how she was victimised by the Respondent. The complainant remained at all time on certified sick leave and at no point expressed, communicated or indicated any intention of possible fitness to return to work or application for unpaid sick leave following a period of TRR.

The complainant was referred for an occupational health assessment by the Respondent and a Report dated 14th January 2020] was issued to the Respondent. The Report provided as follows;

“In my opinion Ms. Gorman remains unfit for work currently. In my view Mc Gorman’s condition has not yet stabilized sufficiently to allow for a return to working life. Although Ms. Gorman is engaging with medical care, her symptoms remain active. I have advised her of an additional avenue of treatment to consider to aid her recovery.”

She was referred again for an occupational health assessment by the Respondent and a further Report issued to the Respondent dated 1st March 2020. Again this Report advised as follows;

“In my opinion Ms. Gorman remains unfit for work currently. This is likely to remain the case for a further 6 - 8 weeks. I have advised Ms. Gorman of an additional avenue of medical care to consider to aid her recovery…. I suggest occupational health review in the event of a pending return to work, to confirm Ms. Gorman’s fitness for work.”

The complainant had continued to submit regular medical certificates thereafter and at no point was there any contact from her to indicate that she was considering a return to work and/or was medically certified as fit to do so.

The complainant states in her Complaint Form that; “Every year she applies for Job Share with her employer and every year it is granted. Last year it was granted on the 27th March 2023. I have not received a response this year.”

This allegation is unfounded and a response was sent by letter dated 26th March 2024 .

The allegation that the complainant has not been offered the opportunity of training is unfounded and refuted by the Respondent.  The Respondent circulated an email to all staff on the 26th January 2024 with an invitation to attend training on the new Portal on one of two dates. The complainant was included in this email. Again, the complainant remains out of work on long term sick leave and as a matter of course when any employee is on certified sick leave, whether long term or otherwise, the respondent would not require such an employee to attend training in such circumstances but would otherwise offer or provide such training to the employees on their return to work or when they were medically certified as being fit.

Preliminary Issue (1) – Parallel proceedings.

The respondent has argued that the current proceedings should be adjourned pending the resolution of a High Court case involving the complainant and the respondent on a personal injuries claim.  The relevant case on this issue is the Court of Appeal Decision in Culkin v. Sligo County Council [2017] 2 IR 326

In this case, giving the judgment of the Court of Appeal, Hogan J said:

"Nevertheless, as I have already stated, the focus of Henderson v. Henderson (7843) 3 Hare 700 is on the relief which might have been obtained in the first proceedings. This is why the rule is not automatically applicable in the special case of separate claims which are required to be made under a statutory scheme on the one hand (such as in the present case) and regular personal injuries claims on the other, even if both claims arise from the same set of underlying facts. To repeat once again, the rule in Henderson v. Henderson requires that the plaintiff must have been able to have brought forward the claim in the second proceedings in the first proceedings….

Even if he had wanted to, the plaintiff could not have combined a common law claim for personal injuries along with the statutory claim for discrimination in the one set of proceedings. Just as the Equality Tribunal had no jurisdiction to entertain the common law claim, the High Court had no first instance jurisdiction to adjudicate upon the statutory claim for discrimination or harassment under the 1998 Act. The discrimination and harassment claim before the Equality Tribunal must, in any event, be linked to one or more of the nine specific grounds identified in s. 6(2) of the 1998 Act, namely, gender, civil status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community. The corollary of this is that the Equality Tribunal has no jurisdiction under the 1998 Act to deal with a claim for free standing claim for discrimination or harassment which is independent of these specific statutory grounds. Putting this another way, while the Equality Tribunal has jurisdiction to deal with a harassment claim which was linked with the gender of the complainant, it would, for example, have no such jurisdiction where the claim simply was that the victim had been harassed by a fellow employee who just happened to dislike him or her.

It follows, therefore, that the discrimination claim and the personal injuries claim are different claims, with different time limits and different rules as to both liability and quantum…… In that sense, therefore, it was simply not possible for the plaintiff to have brought forward his "whole case" before the Equality Tribunal in the sense envisaged by Wigram V.C. in Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 simply because that statutory body would have had no jurisdiction to entertain a workplace personal injuries claim."

I am not adjudicating on the liability of the respondent in relation to any potential personal injury caused to the complainant.  My deliberations are confined to the Employment Equality Act and, in particular, discrimination on the grounds of disability and, secondly, penalisation.  I therefore do not accept this preliminary argument of the respondent.

Preliminary Issue (2) Time Limits

Section 77 para 5 of the Employment Equality Act 1998 states;

(5) Subject to subsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

What is relevant therefore is the date of the most recent alleged act of discrimination.  In evidence the complainant alleged that the most recent date of the alleged discrimination related to the failure of the respondent to acknowledge her application for job share which was submitted on 27th March  2024 which falls within the six month period.  The complaint is therefore in time.

Substantive issues

In any case involving an allegation of discrimination I must first consider the allocation of the burden of proof between the Complainant and the Respondent.

Section 85A of the Employment Equality Act provides that where a Complainant establishes facts from which discrimination may be inferred it then falls to the Respondent to prove that the principle of equal treatment was not infringed.

The established test for ascertaining if the burden of proof shifts to the Respondent was set out by this Court in Mitchell v Southern Health Board [2001] E.L.R. 201. That three-tier test provides: -

1)    It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination.  If the Complainant fails to do so. he or she cannot succeed.

2)    If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3)    If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent, (Mitchell v Southern Health Board [2001] ELR 201)

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that: -

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The primary facts contended by the Complainant are that the Respondent has discriminated against the complainant insofar as the respondent has ;

•                 Not acknowledged the complainant’s sick certificates

•                 Not referred the complainant for medical assessment as required under Circular 0013/2024

•                 Not referred her for medical assessment despite their occupational assessor advising them to do so

•                 Not responded to, or acknowledged, the complainant’s application to job share

•                 Not made any attempt to provide reasonable accommodation for the complainant’s disability

•                 Not ensured that the complainant received staff alerts since 16th May 2022 which include internal promotion opportunities.

The complainant also alleges that failure of the respondent to communicate through her solicitor is evidence of victimisation.

In relation to what constitutes reasonable accommodation Section 16 (3) (a) of the Employment Equality Act states;

 For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’ ) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

 The purpose of reasonable accommodation is therefore clear; it is to enable a person with a disability to access employment, to participate or advance in employment or, to undergo training. 

The complainant is saying that the reasonable accommodation she was looking for in relation to her application for job sharing was that the reply should go to her solicitor.  Of course, any contacts regarding the legal proceedings in which the complainant was engaged should be through her solicitor. This would be unrelated to the issue of reasonable accommodation. However, it is not reasonable that all interactions between an employer and an employee regarding routine matters, such as a request for job sharing, should have to be made through a solicitor. Such a process could lead to additional and unwarranted legal costs for the respondent. I fail to see how communicating with the complainant on routine employment matters through her solicitor could be construed as reasonable accommodation as defined by the Act. It does not meet the purpose of reasonable accommodation insofar as it could not assist in enabling the complainant to access employment, to participate or advance in employment or to undergo training. I therefore conclude that the complainant was not discriminated against as the action sought could not be construed as reasonable accommodation for the purpose of the Act. 

Victimisation is defined in broad terms under the Employment Equality Acts. Section 74(2) provides:

“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment

of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,….

It is clear that the complainant is involved in proceedings with the respondent However for the reasons outlined above, I do not believe that failure to communicate a response through her solicitor to a routine request for job sharing constitutes victimisation.

In evidence the HR Manager confirmed that no staff had their medical certs acknowledged and the complainant was unable to provide a comparator who had his or her certs acknowledged.  Therefore, the complainant was not discriminated against. 

The complainant was unable to identify training offered to others that was not offered to her.  The particular training on the Portal was offered to all staff in a similar manner i.e. by staff email.  This was also the case regarding any promotions which were advertised in the same manner to all staff in any particular school.  Therefore, the complainant was not discriminated against.

Regarding the non-referral to Occupational Health the HR manager says the complainant fell off the radar regarding such a referral due to inadequate staff resources. I note the Occupational Health review dated 1 March 2020 stated; “I suggest occupational health review in the event of a pending return to work, to confirm Ms. Gorman’s fitness for work”   This clearly left open the door to the complainant to initiate a return to work which she did not do at any stage.  I do not consider this to be a discriminatory action and therefore the complainant was not discriminated against.

CA-00066023-001.  The complainant has failed to establish a prima facie case of discrimination or victimisation. 

CA-00066023-002. This complaint was withdrawn.

Reasonable accommodation, victimisation