EDA2574

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045986 (CA-00056877-002)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 22 April 2024. A Labour Court hearing took place on 5 August 2025.

The following is the Determination of the Court:-

DETERMINATION:

1Background to the Appeal

 This is an appeal by the Complainant against decision of an Adjudication Officer (ADJ-00045986 CA-00056877-002) under the Employment Equality Act 1998 (‘the Act’).   The Adjudication Officer held that her complaint of discrimination on the disability ground was not well founded.

The complaint was lodged with the WRC on 27 May 2023. The cognisable period for the purpose of the Act is 28 November 2022 to 27 May 2023.    The Complainant withdrew a linked appeal ADE/24/58.   The parties agreed that the Court should in the first instance consider the preliminary issue of whether the Complainant had established a prima facia case of discrimination on the grounds of disability. The Court noted that the Complainants legal representative Mr Gill of Ferrys LLP only came on record after the deadline for submissions had passed. Mr Ferry made oral submissions on the day of the hearing and was invited to submit a copy of same. The Court received a copy of same, and the Respondent was afforded an opportunity to comment on same prior to the Court making its decision.

2 Summary of Complainants submission

The Complainant was employed on a temporary contract basis with the Respondent in the Fingal area for 17.5 hours per week She was further employed under a Community Employment scheme for 19.5 hours. The Complainant applied for a position that was advertised both internally and externally for a position in the North Dublin Region on the 9 November 2022. The Complainant was interviewed on 19 December 2022. On the 22 December 2022 the Complainant received an email from the Respondent which stated “Our staff handbook also requires that pre-employment medicals are completed by all staff. I will make arrangements for same with Medmark who our occupational Health Service Provider are”.

The purpose of the occupational health assessment is to determine whether or not the applicant can be placed on a panel of employees for future vacancies that might arise. On 6 January 2023 the Complainant received a further email which stated “In terms of the pre-employment medical we use Medmark, and they have come back to say that I need to get you to fill out the pre-employment medical questionnaire on their website…”  and requested that she let them know when it was completed. On opening the link and reading the form the Complainant discovered that she would be unable to complete the form and provide information in respect of her disability and answer certain questions because it would cause her to breach section 28 of the Residential Institutions Redress Act 2002. The Complainant engaged further with the Respondent and on 24th January 2023 received an email from the Respondent which stated “Unfortunately, completion of the pre-employment medical is a requirement of the recruitment process and if that is not completed successfully the recruitment process cannot progress, I can assure that the process is secure and confidential. I would appreciate if you can confirm if you wish to complete the process or if you wish to withdraw from the recruitment process can you please advise by 4pm on 27 January.”

On the 27 January 2023 the Complainant emailed the Respondent stating that she wished to withdraw from the recruitment process. Mr Gill on behalf of the Complainant submitted that the email of 24 January 2023 is the act of discrimination within the reckonable period. The Respondent was on full notice of the Complainant’s disability being anxiety and post-traumatic stress disorder. The rigid application of the requirement to complete the pre-employment medical questionnaire is in the circumstances of this Complainant an act of discrimination. The Respondent had options, they could have waived the requirements as at the point in time she was in employment with them or could have arranged a face-to-face medical consultation.

The Complainant is relying on a hypothetical comparator in respect of this complaint. The hypothetical comparator being another employee of the respondent in the same situation, who does not have the Complainant’s disability being anxiety and PTSD arising from and rooted in time spent in a residential institution. It is the Complainant’s submission that no actual comparator is available as the Complainant is unaware of whether other employees suffer from anxiety and PTSD and has no way of knowing this. It is the Complainant’s position that the Respondent is on notice of her disabilities since 19 September 2022 when she informed the Regional manager and Development Manager at a meeting that she suffered from anxiety. Mr Gill submitted that on the Complainant’s application form she states, “I have overcome personal obstacles and challenges from my past to develop myself and coping mechanisms” a further indication of her disability.

It is the Complainant’s submission that the Respondent could have made a reasonable accommodation in respect of the completion of the pre-employment medical form and their failure to do so was discriminatory.

3 Summary of Respondents submission

Ms McCaul RSM representative for the Respondent submitted that they denied the Complainant was discriminated against on the disability ground or any ground. The Complainant on her own initiative withdrew from the competition process. The Complainant attended for interview on 19 December 2022. By email of 21 December, she stated

“After much consideration I would like to advise you of my wish to withdraw from the application process for Information Provider. My Interview was poor at best and showed me that I have not fully recovered from my recent illness as well as I had thought. I am happy to continue as a CE participant if you wish.”

That email was sent at 7.09 and a further email was sent at 9.40 confirming that she wanted to withdraw from the recruitment process.  A representative from the Respondent sent a text message to the Complainant noting her email and asking that she give her a call. That message was sent at 10.33am. The parties spoke, and it was explained to the Complainant if she withdrew at that stage no results would issue for her and there would be no feedback. The Complainant then sent an email stating that she sent the withdrawal emails in error.

 Candidates were then asked to confirm their consent to any references being checked and sent information in relation to the pre-employment medical which applied to all candidates. By email of 27 January 2023 the Complainant wrote to say following a discussion they had the previous day she wanted to withdraw from the recruitment process and one of the reasons cited was that she was unaware until told at interview that a medical was a requirement. She felt this might cause an issue as she had signed an NDA as part of the Institutional Redress scheme. She also raised a number of other issues including the fact that she had been placed second rather than first in the competition. This withdrawal was not rescinded. In line with her request, she was sent her scores from interview in and around 30 January 2023. Despite having withdrawn from the competition and therefore not needing to present for a medical the Complainant by email of 31 January 2023 sought confirmation that she had a dispensation about disclosing a confidentiality agreement. It was made clear to the Complainant via email that she was never asked to nor was she required to disclose her past. A further meeting was held with the Complainant on 10 February 2023 where the scores she had received in the interview were discussed with her and she was informed that she could have a face-to-face meeting with Medmark to fulfil the medical assessment element. The Complainant was again encouraged to re-engage with the process and was informed that an application from her to re-engage would be supported when it came before the Board of Management. The Complainant verbally confirmed that she would re-engage but no application to reengage was made.

 By email of 14 February the Complainant stated that she would not be requesting that she be considered for placement back on the panel. She went on to state that she could not accept the explanation that was given in respect of some of her answers and that she failed to understand how someone with no practical experience could be placed first ahead of her in circumstances whereby she had been doing the job for eight years. The Complainant then raised a grievance about the campaign the issue of the medical was only one of a number of grievances she raised in respect of the campaign and her grievance in respect of the medical was that she was not aware it was part of the process. The Respondent opened to the Court the application form and section 10 of same just above the Complainant’s signature where its ates “I understand that a medical may form part of this recruitment process….”

The Respondent refutes that they were on notice of the Complainant’s disability. The Complainant making a statement at a meeting that she gets nervous at interview and that with her background she was often told she was worthless and would amount to nothing, cannot equate to putting the Respondent on notice that she suffered from anxiety and PTSD. The Complainant herself accepted that she had no sick absences relating to either anxiety or PTSD. Neither the Complainant’s first, second or final withdrawal from the competition makes any reference to any alleged disability.

4 Relevant Law

The Burden of Proof

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“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.”

This Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“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 a presumption of unlawful discrimination.

It is only if these 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 follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

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”.

5 Discussion and Decision

The Court finds, based on the following facts, that the Complainant has not established a prima facie case.

• 1) The Complainant when she first withdrew from the competition did so on the basis, she believed she had done a bad interview.
• 2) Her second withdrawal from the process was because she was placed second and believed she should have been placed first.
• 3) She stated that she was not aware that a medical may be required but it was clearly stated in the application form.
• 4) She was offered the opportunity to go back into the process for a third time and have a face to face with Occupational Health rather than complete the medical form, but she declined same.
• 5) She is seeking to elevate a statement at a meeting that she got nervous about interviews and equate that to putting the Respondent on notice of a disability without any further supporting documentation or evidence.
• 6) The Respondent engaged with the Complainant in respect of the each and every issue she raised.

Taking all of the above into consideration, the Court determines that the appeal fails. The decision of the Adjudication Officer is upheld.

 The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CC	______________________
21 October 2025	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ms Ceola Cronin, Court Secretary.