Complainant

Respondent

Parties

Anne Doyle

Applus Inspection Services Limited

Representatives

James McEvoy, Work Matters Ireland

Did not attend the hearing

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-00066344-001

28/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00066344-002

Withdrawn

28/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00066344-003

28/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00066344-004

28/09/2024

The complainant worked for the respondent as a call centre agent from April 18th 2001 until her employment was terminated on February 7th 2024.  She had been absent due to illness since December 4th 2020, a period of three years and two months.  Her letter of dismissal states that she was dismissed “due to you being unable to fulfil your contract of employment with the Company.”  When she was employed, the complainant worked for six hours per day for five days a week for an hourly rate of €14.00, giving her a weekly wage of €420.00.  The complainant claims that, by dismissing her, the respondent discriminated against her on the ground of disability.  She claims that she got no notice of her dismissal and, although she received a payment of €1,328.74 on the termination of her employment, she claims that she had accrued five weeks’ holidays and that she was entitled to holiday pay of €2,115.

In her evidence at the hearing, the complainant described her first experience of being unwell, when she felt pain while walking her dog in November 2020.  On her way to work a few days later, she fell when she got off the bus.  She was absent from work from December 4th 2020.  She described a sequence of investigations and treatment for what she described as “one thing after another.”  She attended for a medical review by Medmark, the company’s occupational health consultants, on October 12th 2021, March 11th 2022 and September 5th 2023.  A copy of the March 2022 report was included in the documents provided by the complainant at the hearing and shows that she had a complex medical condition, with lower back pain that prevented her from walking and hand tremors that affected her dexterity.  In March 2022, the opinion of the Medmark doctor was that she was unfit for work and the doctor could not say when she would be able to return.  Mr McEvoy said that the complainant was not provided with a copy of the September 2023 report.

At some point during her absence, the complainant said that she was in touch with her line manager about the possibility of returning to work on shorter hours.  She said also that she could have done some work from home, but this option was ruled out due to concerns about data protection.

On February 7th 2024, the complainant was contacted by telephone by the company’s HR executive, who informed her that her employment was terminated.  In accordance with the respondent’s dismissal procedure, the complainant appealed against her dismissal and, on March 6th 2024, she attended a meeting to set out the grounds of her appeal.  At the meeting, she said that she explained to the managers who heard her appeal that she was waiting for test results from her consultant and that, as soon as she got the results, her doctor would recommend treatment and she felt that she would be able to return to work.  The complainant said that no consideration was given to the possibility that she might be able to return to work on reduced hours and no options were discussed regarding how she might be facilitated to return.     

The Legal Framework

The issue for consideration here is discrimination against a person because of disability, which is listed at section 6(2)(g) of the Employment Equality Act 1998 – 2015 (“the EE Act”) as one of the nine discriminatory grounds.  It is the complainant’s case that, as a person suffering from a variety of illnesses, she was discriminated against when she was dismissed because of her absence.  The complainant also claims that her employer failed to provide her with reasonable accommodation by reducing her working hours or by permitting her to do some work from home. 

In Section 2 of the EE Act, 

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.

While the complainant provided no medical report to show that she had a specific ailment, it was clear from her evidence that she suffered from several debilitating conditions that prevented her from attending work.  She submitted a report from the respondent’s occupational health consultants, Medmark, dated March 11th 2022, which reflects this evidence and the report shows that the doctor’s opinion was that she was unfit for work because of a number of health problems.  The complainant presented no medical report from her own doctor to indicate that she was recovering, or that she could return to work on reduced hours, or that she could work from home.

The Burden of Proof

Section 85A of the EE Act transposes into Irish law Article 19(1) of the EU Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.  Sub-section 1 of section 85A 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 the contrary.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  In his submission, Mr McEvoy referred to the important decision of the Labour Court in Southern Health Board v Mitchell[1] where it was held that,

“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 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.”

Mr McEvoy also referred to the decision of the Labour Court in Melbury Developments Limited v Arturs Valpeters[2], in which the Court expanded on what is required to establish the initial proof that discrimination has occurred:

“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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

My task therefore, is to consider if the complainant has shown that, based on the primary facts, she was discriminated against by her employer when she was dismissed and when no accommodation was provided to facilitate a shorter working week or the possibility that she could do some work from home.

The Primary Facts

The complainant was employed by the respondent for almost 23 years.  For the final three years, she was absent due to a variety of illnesses.  She had difficulty walking or standing for more than a few minutes.  Sitting for prolonged lengths of time was painful and she suffered from a tremor in her hand.  She had carpel tunnel syndrome.  She had a problem with her weight that was exacerbated by her emotional reaction to the death of her mother. 

When she went absent in December 2020, the complainant said that she was paid her wages for 12 weeks, after which time she received half pay for two weeks.  Since then, she has been in receipt of Illness Benefit from the Department of Social Protection.

The complainant said that she attended for an examination by the respondent’s occupational health consultants, Medmark, on at least three occasions.  She produced a copy of a report from Medmark dated March 11th 2022.  The doctor who examined her on that day stated that she “remained unfit to return to work despite her prolonged sickness absence due to multiple lower back and radiating lower limb symptoms with recent development of tremor affecting fine manual dexterity in middle and index fingers.”

The complainant said that she returned to Medmark on September 5th 2023 and that she was examined by a different doctor who concluded that she was still unfit for work.  She said that she didn’t get a copy of the consultation report from that date.  She said that she expected to be seen again by Medmark, but, by the date of her dismissal, she hadn’t had any communication about another appointment.

In a telephone call on February 7th 2024, the complainant was informed by a member of the HR department that her employment was terminated with effect from that day.  She received a letter confirming her dismissal, “due to you being unable to fulfil your contract of employment with the Company.”  In the letter, the complainant was informed that she could appeal the decision and, to this end, she attended a meeting on March 6th 2024. 

The complainant provided a copy of the notes of the appeal meeting, at which she was accompanied by a friend.  At the meeting, she informed the manager hearing her appeal about her very poor state of health over the previous three years.  She said that she was waiting for the results of a nerve test and she hoped that, when she got the results, she would be able to return to work.  She said that she had lost a considerable amount of weight and that she wanted to come back to work.  She said that she had discussed with a named person in the company the possibility that she could work in the mornings only, but she got no response to this request.  She brought medical information with her to the meeting, but she said that she wasn’t asked to produce the information.  She described this meeting as “a joke.”

The complainant had no documentation to show the outcome of the appeal meeting, but she said that her dismissal wasn’t overturned. 

Findings

Considering the burden of proof established by the Labour Court in Melbury Developments Limited v Arturs Valpeters, I must be satisfied that the facts presented by the complainant are sufficient for me to presume that she was treated less favourably compared to an employee who wasn’t suffering from a disability.  Mr McEvoy submitted that I must compare the complainant to a hypothetical employee who, in similar circumstances, would have been treated more favourably.

The difficulty with the use of a hypothetical comparator in this case is that the complainant’s circumstances are not comparable with those of any other employee.  Unfortunately, poor health prevented her from attending work for more than three years and it is unlikely that an employee who is not suffering from a disability would find themselves in the same circumstances.  A more relevant comparator might be an employee who is at risk of dismissal because of a disciplinary matter or due to redundancy.  The question I must ask is, would an employee whose conduct is in question, or whose job is at risk of redundancy, have been treated more favourably compared to the complainant?   

All contracts of employment are based on a simple premise that an employee will attend work regularly and carry out a specific job for an agreed wage.  When an employee fails to attend work, an employer must give some consideration to the cause.  The complainant was dismissed because she was unable to attend work over a long period due to a variety of ailments.  In her evidence at the hearing, I learned that she found the death of her mother very difficult to get over and that this exacerbated her complicated health issues.  I note also from the complainant’s evidence that she attended the respondent’s occupational health consultants on at least three occasions and that the opinion of the company’s doctor up to September 2023 was that she remained unfit for work.

When the complainant got a phone call from the HR officer in February 2024, if, as she claims, she wanted to return to work in the mornings, then, it was incumbent on her to demonstrate this by providing confirmation from her doctor that she was fit to return to work on reduced hours.  The fact that she did not do so prevented the respondent from considering her request for reasonable accommodation.  The complainant never took the initiative regarding a return to work and she provided no evidence that she could come back if she was permitted to work mornings only.  Four weeks after her employment was terminated, at the meeting to appeal against her dismissal, she still didn’t present a medical certificate to show that she was ready to return to work, or that she would be capable of returning on a specific date.

The complainant brought this complaint under the heading of the Employment Equality Act and my focus therefore must be on whether she was discriminated against by being dismissed.  The evidence shows that she was dismissed because she was unable to come to work and to fulfil her contract of employment, and, on this basis, while the outcome was upsetting and difficult for the complainant, I find that the respondent’s decision to dismiss her was not unreasonable.

I return now to the issue of a comparator, an employee at risk of dismissal for different reasons, for example, for disciplinary reasons or redundancy.  I am certain that an employee whose conduct was in question or whose job was at risk of redundancy would not have been dismissed in a phone call confirmed by letter the same day.  It is my view that the complainant was dismissed in this perfunctory manner because she was absent due to illness. 

Considering the case law cited by Mr McEvoy, I am satisfied that the complainant’s evidence was of sufficient significance to show that she was treated less favourably compared to another employee.  I find therefore that there is substance to her complaint that she was discriminated against because of her disability.  As the respondent did not attend the hearing to rebut this evidence, I must find that the complaint of discrimination is well founded.

The right of an employer to pay an employee in lieu of notice is set out at s.7(1) of the Minimum Notice and Terms of Employment Act 1973:

(1) Nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice.

At the time of her dismissal, the complainant had worked for the respondent for 23 years.  If she had been dismissed for a reason other than absence due to illness, she would have been entitled to eight weeks’ notice.  The complainant did not show that she was capable of working her notice and she wasn’t therefore in a position to waive her right to notice.  For this reason, at the termination of her employment, the right of her employer to pay her in lieu of notice did not apply.

The Relevant Law

To bring the treatment of holidays in Ireland into line with the jurisprudence of the CJEU, the new s.19(1A) of the Organisation of Working Time Act 1997 (“the OWT Act”) changed the law in relation to the accrual of annual leave.  The Act now provides that annual leave is accrued during periods of absence due to illness:

“(1A) For the purposes of this section, a day that an employee was absent from work due to illness shall, if the employee provided to his or her employer a certificate of a registered medical practitioner in respect of that illness, be deemed to be a day on which the employee was -

(a) at his or her place of work or at his or her employer’s disposal, and

(b) carrying on or performing the activities or duties of his or her work.”

The amendment to s.23 of the OWT Act deals with what happens to holidays not taken when an employee who is ill doesn’t return to work: 

(1) (a) Where -

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, 

the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

(b) In this subsection -

‘relevant period’ means -

((i) and (ii) are not relevant to this complaint.)

(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, (this refers to Section 20(1)(c)(iii) of the OWT Act) that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) -

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

or

(iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii) -

(I) the current leave year, and

(II) the 2 leave years immediately preceding the current leave year.

It is apparent from (iii) and (iv) above that the legislation intends that employees are to be compensated differently for annual leave not taken, depending on:

(iii)  whether their employment ends during the first 12 months following the end of the year in which they went absent, in which case they are entitled to compensation for holidays accrued during the leave year in which their employment ends and the preceding leave year.

Alternatively,

(iv)  If their employment ends during the final three months of a period of 15 months after a leave year in which they have been absent, they are entitled to compensation for holidays accrued during the leave year in which their employment ends and the preceding two years.

Based on the objective of the amended legislation to place some limit on the entitlement to compensation for holidays not taken as a result of long periods of sickness absence, my understanding is that the maximum compensation to which an employee who has been absent due to illness is entitled is equivalent to pay for holidays accrued in the 24 months before the year of termination, plus the leave that accrues in the year of termination.

The complainant falls into the “alternative” subsection (iv), because her employment ended on February 7th 2024, which was within the final three months of the 15 months after the end of the 2022 leave year.

Findings:  Compensation for the Number of Days’ Holidays Not Taken

The complainant was absent due to illness from December 2020 until her employment ended on February 7th 2024.  Leaving aside the month of December 2020, which has no bearing on her entitlement at the date of termination, the table below provides an indication of how her annual leave at the cessation of employment must be calculated.

Based on the intention of the amended section 23(1)(c)(iv), the complainant is entitled to compensation for holidays not taken during the leave year in which her employment ended, (“the current leave year”) and for the holidays not taken in 2023 and 2022 (“the 2 leave years immediately preceding the current leave year”).  In summary, she is entitled to the benefit of 42 days’ holidays not taken which accrued over a period of 25 months and one week.

The complainant claims that she received a payment of €1,328.74 from the respondent following her dismissal.  In the letter dated February 7th 2024, the HR officer informed her that the payment was for her “notice period, holidays and any remaining monies due.”  We know that the complainant was not entitled to notice and, apart from holiday pay, it is unlikely that any other money was due.

The complainant said that she worked for six hours each day at an hourly rate of €14.00.  Her daily rate of pay was therefore, €84.00.  As I have concluded that, at the termination of her employment, she was entitled to 42 days’ holidays, I find that she is entitled to pay for holidays not taken of €3,528.  As she was paid €1,328.74, the shortfall is €2,200.

CA-00066344-001:  Complaint under the Employment Equality Act 1998

I have concluded that, on the primary facts, the complainant has discharged the burden of proving that she was discriminated against.  I decide therefore, that her complaint under the Employment Equality Act is well founded.  In accordance with my powers of redress under s.82 of the Employment Equality Acts, as compensation for the effect of discrimination, I order the respondent to pay her €11,000, equivalent to 26 weeks’ pay.  This award is for the infringement of a statutory right and is not subject to deductions for PAYE, PRSI or USC.

CA-00066344-003:  Complaint under Minimum Notice and Terms of Employment Act 1973

I have concluded that the complainant was not entitled to pay in lieu of notice and, for this reason, I decide that this complaint is not well founded.

CA-00066344-004:  Complaint under the Payment of Wages Act 1991

I decide that this complaint is well founded and I direct the respondent to pay the complainant compensation of €2,200.  As this is compensation for breach of a statutory right, in accordance with s.192A of the Taxes Consolidation Act 1997, it is not subject to deductions for PAYE, PRSI or USC. 

Summary of Awards

In summary, in respect of her complaints under the Employment Equality Act 1998 and the Payment of Wages Act 1991, I direct the respondent to pay the complainant compensation of €13,200.  This overall award is not subject to any deductions.

Termination of employment, absence due to illness, disability, notice, holiday pay at termination of employment