DETERMINATION NO. EDA2334
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015
PHIBSBORO CAT RESCUE
(REPRESENTED BY DEREK DUNNE BL INSTRUCTED BY KELLY HOBAN SOLICITORS LLP)
- AND -
|Employer Member:||Ms Doyle|
|Worker Member:||Ms Treacy|
1.Appeal of Adjudication Officer Decision No(S) ADJ-00033363 CA-00044202-001
2.The Employer appealed the Decision of the Adjudication Officer to the Labour Courtin accordance with Section (83) (1) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 4 July 2023. The following is the Court's Determination:
This is an appeal by Phibsboro Cat Rescueof a decision of an Adjudicator Officer (ADJ-00033363 CA-00044202-001) under the Employment Equality Acts 1998 – 2015 (“The Acts”).The Adjudicator upheld a complaint that Danielle Davis was discriminated against, and subject to a discriminatory dismissal and made an award of €8,000 as compensation.
Danielle Davis referred her complaints under the Acts to the Workplace Relations Commission on 18 May 2021, a hearing was held on 18 August 2021, and the Adjudication Officer’s Decision issued on 31 August 2022. Phibsboro Cat Rescuelodged an appeal of that decision to the Labour Court on 20 September 2022.
A hearing of the Labour Court was conducted in Dublin on 4 July 2023. For ease of reference the parties are given the same designation as they had at first instance. Hence Daniele Davis is referred to as “the Complainant” and Phibsboro Cat Rescue is referred to as “the Respondent”.
The Complainant commenced employment as a “Kitty Carer/ Vet Liaison” on 16 November 2020. Prior to her employment, the Complainant occasionally worked as a volunteer with the Respondent, chiefly providing foster care to kittens. The Complainant tested positive with Covid-19 on 5 January 2021 and was certified as unfit for work from 4 January until 28 January 2021. Her contract of employment provided for a probationary period of 3 months, which was extended by agreement when she was on sick leave. On 15 February 2021, the Complainant submitted a medical certificate which stated that she was suffering from “worked related anxiety and depression”. By letter dated 23 February 2021, the Respondent terminated the Complainant’s employment with effect from 2 March 2021.
The Complainant contends that she was discriminated against on the grounds of disability when following a period of sick leave her employer (i) failed to engage with her request to work from home and (ii) subjected her to a discriminatory dismissal.
The Respondent refutes that the Complainant was subjected to any discrimination under the Acts or that she has established facts from which a prima facie case of discrimination can be established.
Position of the Respondent
The Complainant was dismissed during her probationary period as she was not suitable for the role. Her contract of employment provided for a probationary period of 3 months, which was extended by agreement to 15 March 2021 when she was on sick leave.
The alleged facts relied on by the Complainant to substantiate her complaint are by their nature grievances, which taken at their height - as was the approach taken by the Labour Court inAccess IT CLG v Karen McCarthy EDA2223- do not provide a basis for a prima facie case or inference of discrimination on the grounds of a disability.
It is disputed, as a matter of fact and law, that the Complainant suffers from a disability. The issue of whether the Complainant has a “disability” is a mixed question of law and fact which turns on the true construction of the definition of “disability” contained in Acts and the application of the definition of “disability” to the facts as found by the Court:
The Labour Court has confirmed that depression is a “disability”, however, in order for depression to constitute a “disability” within the meaning of the Acts, the depression must satisfy the definition of “disability” as set out by the ECJ inJette Ring v Dansk (C-335/11)and as adopted by the Labour Court inHouses of the Oireachtas v Tom Hickey EDA1918, i.e. the depression must be an“impairment which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one”.
The Complainant must adduce medical evidence that she suffered from a “disability” in the form of depression, that satisfies the definition of “disability” as set out by the ECJ inJette Ring v Dansk (C-335/11).The submission of medical certificates indicating that an employee is unfit for work by reason of depression, in and of itself, is insufficient to give rise to an inference of discrimination.A short-term condition, sickness and/ or illness is not a disability within the meaning of the Acts.
The Complainant did not disclose to the Respondent that she suffered from a disability. A causal link between an employee’s disability and discrimination can only arise where the employer has actual or constructive knowledge of the employee’s disability. At no time during her contact and interactions with her manager, Ms. Falkingham, did the Complainant display or exhibit signs that she was suffering from depression or anxiety or struggling with her mental health.
None of the Complainant’s grievances and/ or allegations arose because of the Complainant’s alleged disability. There were objective reasons for not permitting the Complainant to work from home. The allegation that the Complainant was directed to work in a cold storage space without water mains or sanitation is denied, as is the allegations that the Complainant was blocked from the Respondent’s social media platforms. The allegation that the Respondent accused the Complainant of taking money from the charity is denied.
Without prejudice to the above, the Complainant’s contention that she suffered from depression amounting to a “disability”must be weighed against the fact that on 28 January 2021, the Complainant advised, “Iam healthy and good to go back to work but my doctor said I can’t do any heavy lifting or excessive work they also advised me to stay warm”.The first occasion depression was mentioned was in an email to Ms. Falkingham on 8 February 2021 - nearly three months after commencing employment. Only one of three medical certificates submitted by the Complainant stated that she was unfit for work by reason of depression and anxiety. That medical certificate was submitted on 15 February 2021 and backdated to 8 February 2021.
The complaint of discrimination and discriminatory dismissal on the ground of disability must fail on the basis that the Complainant does not suffer from a “disability” within the meaning of the Employment Equality Acts and on the basis that the Complainant has failed to establish a prima facie case in this regard.
The Respondent terminated the Complainant’s contract of employment when, after careful consideration and deliberation, it came to the conclusion that the Complainant was not suitable for her role.
In support of its position the Respondent referred the Court toJette Ring v Dansk (C-335/11), Rattigan v Connacht Gold Cooperative Society  E.L.R. 298; Stobart (Ireland) Limited v Beashel EDA 1411, A Government Department v A Worker EDA094.A Government Department v A Worker EDA094,Access IT CLG v Karen McCarthy EDA2223.
Position of the Complainant
The Complainant commenced employment on 11 November 2020 and initially enjoyed her role, however, matters deteriorated around Christmas 2020 when her manager Ms Falkingham became increasingly dissatisfied with the Complainant and belligerent in how she interacted with her.
The Complainant tested positive with Covid-19 and was certified unfit for work from 4 January 2021. Her work telephone and laptop were collected from her on 7 January 2021. There was further communication between the parties in mid-January which became increasingly fractious.
The Complainant was certified fit to return to work on 28 January 2021, but was advised by her doctor not to work in a cold environment or to overexert herself. She informed Ms Falkingham on 28 January 2021 that,“I am healthy and good to go back to work but my doctor said I can’t do any heavy lifting or excessive work they also advised me to stay warm.”
The Complainant’s contract of employment indicated that her place of work was to be “The Purr”,which was undergoing construction work at the time. Pending relocating to “The Purr”,the Complainant was required to work in the “TheHub”, which was effectively a disused storage centre used to store supplies for families fostering cats. “The Hub”was cold with no heaters or running water.
The Complainant was certified as unfit for work and by letter dated 15 February 2021, her GP indicated that she was suffering from depression. A request for mediation was rejected by the Respondent.
By letter dated 23 February 2021, the Respondent terminated the Complainant’s employment. The dismissal letter did not make any reference to the Complainant not fitting with the Respondent, despite later maintaining that it was this reason which prompted the termination.
The Respondent extended the Complainant’s probation period as she was on sick leave during an initial part of the probation period. She was dismissed during the extended probationary period when still on sick leave. Unlawful discrimination which arises during the course of a probation period is no less unlawful to discrimination which may arise after that probation period has lapsed.
It appears the Complainant’s inability to attend at “The Hub”rather than her fit which drove the dismissal.
The Respondent was aware of the Complainant’s disability as she and Ms Falkingham were previously on cordial terms and this information was openly shared by the Complainant with the Ms. Falkingham before the Complainant commenced employment.
The Complainant was subjected to discrimination by the Respondent on the basis of her depression. The Respondent refused to permit the Complainant to work from home and instead compelled her to work in a cold environment which was not the place of work specified in her contract of employment. The Respondent’s unreasonable demand that the Complainant work from “The Hub”resulted in her discriminatory dismissal. The employer took no actions to engage with the Complainant’s disability and the failure to engage with the work from home request amounted to discrimination. These facts quite clearly give rise to the operation of s.85A of the Acts and that the Respondent has failed to adduce any cogent evidence to rebut the presumption.
Ms Danielle Davies – testimony of the Complainant
At the outset of her testimony, the Complainant verified the content of the oral and written submissions she had made thus far to the Court. She clarified that she suffers from a number of conditions but that her complaint before the Court relates solely to discrimination on the grounds of disability, namely depression.
The Complainant told the Court that she knew Ms Falkingham before working in the centre as she had started volunteering with the centre in 2018. She had fostered kittens and was involved in fundraising. Ms Falkingham was aware of her medical condition as she mentioned to her that she suffered from depression and anxiety. They shared personal information and had spoken about past relationships. When previously absent from work with stress and anxiety she had messaged Ms Falkingham to tell her that she could not go to the centre to do volunteer work.
Her contract of employment states that her place of work was “The Purr”for the time being. She had worked from home for a week before Christmas up to 5 January 2021. “The Hub”was used as a store, and she had complained about working there. The water was hooked up to a hose, there were no windows as the shutters were down, and the door would not close properly. The heaters had been moved to”The Purr”. There was an orange iridescent light which caused her headaches.
She was certified absent with Covid-19 from 5 to 17 January 2021 and was absent with a secondary infection from 18-29 January 2021. When she tried to return to work she asked if she could work from home, as her doctor told her not to work in the cold. She refused to work in “The Hub”because of her health concerns. She did not accept the assurances from Ms Falkingham, as she had been there previously and it was too cold.
She felt that her relationship with Ms Falkingham deteriorated after the 8 February. She sent a number of emails to her but received no replies. She was dismissed after she said that she suffered from depression.
Under cross examination, the Complainant accepted that she was on probation during this period, and that either party can terminate the relationship during probation. She said that there was no discussion about ongoing issues or not being a suitable fit.
When asked why she did not return to work to try out working in “The Hub”, she said that she was anxious about security and the door blowing open and was worried that her issues would not be addressed.
When asked to explain how her depression was connected to her dismissal, she said that “it felt that way”. When invited to comment on an email from Ms Falkingham which asked that she come back to work and stated “[I]...still believe you are a great asset”, the Complainant said that her probation was extended because of her sick leave. She previously had a friendship with Ms Falkingham, but the tone of the emails changed, and Ms Falkingham mentioned that she had made the trustees aware of the emails.
When asked why she submitted formal complaints to external organisations so quickly, the Complainant said that she sought advice from Legal Aid and Citizens Advice about taking annual leave. She accepted that the complaint she made to the Health and Safety Authority (HAS) was dismissed. The Complainant accepted that she had raised issues about her payslips and other workplace issues before she notified her employer of her condition.
The Complainant acknowledged that a Facebook message is not medical evidence, and that the first mention of depression in writing to her employer was in the email dated 8 February 2021.
The Complainant felt that her diagnosis of depression was the straw that broke the camel’s back. She was depressed and could not get out of bed, and then she received an email stating that she was dismissed. Her mindset at the time was that she felt pushed out, because of her depression. She believes that she was dismissed because she had a disability.
Ms Katy Falkingham
Ms Falkingham told the Court that she established the charity in 2014 from her home. In 2018 it acquired a lease for “The Hub”which was previously in use as a local convenience store and a ceramics studio. In 2020 the charity acquired a lease for “The Purr”, which was due to open on Valentine’s Day, 2021.
Ms Falkingham said she could not recall precisely when she first met the Complainant and that they knew each other through the cat grapevine. The Complainant worked in a pet store in Tallaght, and in July 2016 she had contacted the centre about some rescue kittens’ and in April 2018 had offered to foster four kittens for two weeks. Their relationship was professional only, and they had no relationship outside a work environment.
The Complainant’s role involved a hands-on aspect caring for cats and an administration element. On paper she had all the qualities required for the role, however, she found that Complainant to be poor at answering emails. She was good at working on accounts. She made clear to the Complainant that her work location would be between “The Purr”and “The Hub”. She allowed work the Complainant to work from home during the week before Christmas and into the New Year
The Complainant was absent in January and submitted a sick certificate. When she was fit to return to work, she informed her to work from “The Hub”for 4/5 days. There was no need for her to work from home and she needed to be trained on fresh work. The Complainant refused. “The Hub”was the main base for storage, meetings, and a distribution centre. It was perfectly suitable for use as an administration centre. There were some issues in December with the temperature, but these were resolved by February. When the Complainant was due to return to work, there were seven radiators and if anything the place was too hot. There was no issue with water supply. The main door closed properly, you just needed to lift the latch carefully.
She asked the Complainant to pop into “The Hub”to check the temperature, but she refused. The Complainant submitted a complaint to the HSA, which investigated the matter and found no issue. She gave the Complainant the option of taking holidays that week rather than return to work, but she took that matter to the Workplace Relations Commission (WRC). She offered the Complainant part-time hours but received no response. She offered her the option of taking a four-day training course the following week, but again received no response. The Complainant said that she wanted mediation.
Ms Falkingham said that there were a few workplace issues with the Complainant prior to her sick leave, which in her view were fixable, and she planned to sit down and discuss those with the Complainant when she returned to work. On 28 January 2021 the Complainant said that she was fit and well, and then the Complainant’s attitude seemed to change completely. She refused to work and there were numerous emails. The Complainant kept raising fresh issues. She made formal complaints to the HSA and the WRC and went to Citizens Advice. It was not the formal complaints per se that were an issue; it was the fact that the Complainant’s first action was to make a formal complaint rather than try and resolve an issue.
She spoke with the Board who advised her to get legal advice on the matter. She also contacted the WRC. She emailed the Complainant on 7 February to advise her that she would be left with no option but to terminate her employment, as she was not certified unfit to attend work at that time.
She had no knowledge that the Complainant suffered from depression before receiving the email of 8 February. She had never mentioned depression to her. She had no recollection of the Facebook message sent by the Complainant in 2018, as she does not use Facebook personally. There are 150 volunteers working at any one time and the number is higher during the kitty season.
In the following period, the Complainant became more argumentative. There was no compromise from her. She kept raising fresh issues and demanding mediation. She reviewed the matter with the Board, and they concluded that the Complainant was not a right fit for the organisation. There were only two employees, herself, and the Complainant. The Complainant was dismissed because of the way she conducted herself in emails, which were increasingly confrontational.
In response to questions from the Complainant in cross examination, Ms Falkingham said that she had no recollection of having coffee with the Complainant when she worked in Tallaght.
Section 2 of the Act defines the term “Disability” includes: -
(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;
Section 85A (1) of the Act provides: -
- 85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
Deliberations and Findings
In any case involving an allegation of discrimination the Court must first consider the allocation of the burden of proof between the Complainant and the Respondent.
Section 85A 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 inMitchell v Southern Health Board 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  ELR 201)
InMelbury Developments Ltd v Valpeters 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”.
In this case the primary facts contended by the Complainant are that (i) she suffered from a disability within the meaning of the Act, (ii) the Respondent was on notice of that disability, (iii) the Respondent discriminated against her by insisting that she work in “The Hub” and by failing to engage with her request to work from home, and (iv) the Respondent subjected her to a discriminatory dismissal.
The Complainant submits that these facts are of sufficient significance to raise an inference of discrimination such that the burden of proof rests with the Respondent to prove that the principle of equal treatment was not infringed.
The issue for the Court to consider in the first instance is whether or not primary facts can be established from which discrimination can be inferred.
Did the Complainant have a disability at the time material to her claim?
The Complainant submits that she suffers from a disability under the Act namely “depression”.
Mr Derek Dunne BL, on behalf of the Respondent, disputes as a matter of fact and law that the Complainant suffers from a disability.
Mr Dunne BL submits that in order for depression to constitute a “disability” within the meaning of the Acts, the depression must satisfy the definition of “disability” as set out by the ECJ inJette Ring v Dansk (C-335/11)and as adopted by the Labour Court inHouses of the Oireachtas v Tom Hickey EDA1918, which meansthat the depression must be an“impairment which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one”.
The definition of disability as propounded by the ECJ inJette Ring v Dansk (C-335/11)requires the disability to be long-term in nature. By contrast, the definition of disability contained in Irish law which pre-dates the Framework Directive (insert reference) and is broader than the case law of the CJEU.
When invited to comment on this apparent conflict Mr Dunne BL submitted that there is an obligation on the Labour Court to interpret national law harmoniously with EU law.
In Cregg Labour Solutions v Cahill EDA164 the Labour Court considered this conflict as follows.
- “The approach which national courts and tribunals should adopt in dealing with an apparent conflict between national and European law contained in a Directive was set down in Case 282/10Dominguez v. Centre Informatique du Centre Ouest Atlantique  IRLR 321the CJEU gave guidance on how a national court should proceed when faced with an inconsistency between its domestic law and the law of the Union. It pointed out that if the Court is unable to construe the domestic provision in harmony with the Directive it should then consider if the Directive is capable of being applied directly by the doctrine of direct effect. However, it is a general principle of European law that the implementation of a Directive should not result in a worsening of the pre-existing position of those for whose benefit the Directive was adopted (the principle of non-regression).”
This Court determined inEDA094 A Government Department and A Workerthat depressive illness or clinical depression falls within the statutory definition of ‘disability’, in particular subsection (e), i.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.’
What evidence is there of a disability?
The Complainant relies on a medical certificate submitted to the Respondent on 15 February 2021 which states that she was suffering from “work related anxiety and depression”.It is accepted that no other medical evidence was provided to the Respondent in relation to her stated disability of depression.
Mr Dunne BL submits that a medical certificate in and of itself is not a sufficient fact to establish a disability and referred the Court to the cases ofA Worker v A Food Manufacturer DEC-E2010-187andMr A v A Charitable Organisation DEC-E2011-049.
In the view of the Court the facts in the within appeal can be distinguished from both of these cases.
InA Worker v A Food Manufacturer DEC-E2010-187theEquality Tribunal found that there was “no evidence whatsoever, either in the form of meaningful medical reports from relevant specialists, or the complainant's GP, was adduced to prove that the complainant is disabled within the meaning of the Acts. The only documentation the complainant provided was an appointment with a consultant and a generic letter from the hospital to advise him how to prepare for his stay”.
In contrast to the case ofA Worker v A Food Manufacturer DEC-E2010-187the Complainant in the within appeal has provided medical evidence in the form of a medical certificate stating that she was suffering from “work related stress and depression”.
InMr A v A Charitable Organisation DEC-E2011-049the Equality Tribunal held: “I am also not satisfied that the submission of a medical certificate indicating that an individual is suffering from, 'work related stress', in and of itself, comes within the meaning of section 2 of the Employment Equality Acts”.
The Court notes that inMr A v A Charitable Organisation DEC-E2011-049 the Equality Tribunal was not satisfied that'work related stress' was a disability within the meaning of section 2 of the Acts. In contrast to that case the Complainant in the within appeal submits her disability is depression rather than'work related stress'. The Equality Tribunal went on state that it was satisfied, following receipt of the medical reports stating that the Complainant was now suffering from 'an adjustment disorder' and 'depression and anxiety' that“the respondent is now aware that the complainant is a person with a disability within the meaning of section 2 of the Acts”.
In the within appeal the Complainant relies on a medical certificate submitted to the Respondent on 15 February 2021 which states that she was suffering from “work related anxiety and depression”to ground her complaint of discrimination on the ground of disability under the Acts.The Court notes that the veracity of the medical certificate provided by the Complainant was not challenged in any way by the Respondent. On the face of it the Court accepts that the Complainant has established that she is suffering from a disability under the Act, namely depression, atthe time material to her claim.
Was the Respondent on notice of the disability?
The Complainant submits that she had openly discussed her health matters in the past with the Respondent manager, Ms Falkingham. She said that they were on friendly terms, and she had verbally told Ms Falkingham about her depression before ever commencing employment. In support of her position, the Complainant referred the Court to a Facebook message posted / dated 13 November 2018 at 20.04 which states, “Hey Katy, I cant help out sadly ive been signed off work with stress and anxiety so right now until My medication kicks in and I’m back working I’m not much use (sic)”.
Ms Falkingham acknowledged that she was acquainted with the Complainant “through the cat grapevine” since 2016 but refutes that the Complainant confided in her about her medical status, or that they discussed health matters. She said that their relationship was purely professional, and they had no relationship outside of a work context. Her evidence was that she became aware that the Complainant suffered from depression on 8 February 2021 when the Complainant emailed her to say that her doctor had signed her off on “work related stress”.
There was a conflict of evidence in relation to when and if the Respondent was put on notice that the Complainant suffered from a stated disability. The Court notes that there is no mention of depression in the Facebook message posted in November 2018. As a result, the Court finds that the Complainant cannot rely on that message as evidence that she suffered from depression, or that the Respondent was of notice of that disability at that time.
The key question for the Court to determine is whether the Respondent was on notice of the Complainant’s stated disability, and if so from when.
For an employer to be on notice of a disability under the Act, the disability concerned must be self-evident or, alternatively, the employer must be advised of its existence. InAn Employer and A Worker EDA1927the Court noted that:
- “It would be, in the view of the Court, entirely unreasonable and unrealistic to expect employers to engage in guesswork about whether or not medical complaints brought to their attention required further enquiry by them in order to establish if they indicated the existence of a disability that required them to take appropriate measures An employer cannot be expected to engage in guesswork about whether or not medical complaints brought to their attention constitute a disability under theAct.”
The Complainant and Ms Falkingham gave very different accounts of their relationship and the type of conversations that they had in the past. Having considered the evidence before it, the Court is of the view that the Complainant and Ms Falkingham may well have engaged in conversations that included discussion of health matters, however, the Court is not convinced from the testimony of the two witnesses that the Respondent was on notice of the Complainant’s disability as a result of those conversations. On balance, the Court accepts Ms Falkingham’s evidence that she first became aware that the Complainant suffered from depression on 8 February 2021 when the Complainant emailed her to say that her doctor had signed her off on “work related stress and depression”, and that this was confirmed to her on 15 February 2021 when she received the medical certificate submitted by the Complainant.
Having regard to the above, the Court finds that the earliest date that the Respondent was on notice that the Complainant suffered from depression was 8 February 2021. By 15 February 2021 the Respondent was in receipt of a medical certificate which stated that the Complainant was suffering from depression.
Was the Complainant discriminated against when the Respondent refused her request to work from home?
The Complainant asserts that she was discriminated against on the grounds of her disability as the Respondent insisted that she work in“The Hub”and failed to engage with her about her request to work from home. The Complainant told the Court that she suffered a secondary infection after her diagnosis of Covid-19 in early January. She was certified fit to return to work at the end of January and following her doctor’s advice sought to be accommodated with working from home. That request was refused.
In response to questions from the Court, the Complainant confirmed that her request to work from home arose because of her Covid diagnosis and concerns she had about working in a cold environment having suffered a secondary infection. In light of the above, the Court finds that the Complainant’s request to work from home was not related to her stated disability of depression, as the request to work from home arose because of the Complainant’s health concerns having experience a secondary infection after her Covid diagnosis.
The Court finds that on the evidence presented the Respondent was not on notice that the Complainant was suffering from a disability under the Act when her request to work from home was declined. As a result the Court finds that there is no causal link between the actions of the employer in refusing to allow the Complainant to work from home and her stated disability.
TheCourt finds that the Complainant has not established facts to infer that she was discriminated against on the grounds of a disability when the Respondent refused to allow her to work from home.
Was the Complainant subjected to a discriminatory dismissal?
The Complainant was notified by letter dated 23 February 2021 that her employment would terminate with effect from 2 March 2021. The Respondent was on notice that the Complainant was suffering from depression at that time.
These facts on their own are not of sufficient significance to raise an inference of discrimination such that the burden of proof under the Act shifts to the Respondent. It is for the Complainant to prove the primary facts upon which she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so, her complaint cannot succeed.
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. The Court must be satisfied that there are objective facts that infer a discriminatory dismissal. Mere assertions do not raise an inference of discrimination.
The Complainant submits that the employer took no actions to engage with her disability, and that she was subjected to a discriminatory dismissal as a result of her stated disability. Her evidence was that after her diagnosis of depression on 8 February her relationship with the Respondent deteriorated, and she felt that she was pushed out because of her mental health issues. In support of her position the Complainant asserts that there was no conversation about her not being a good fit during her probationary period. There was no engagement with her about her disability. She further submits that her dismissal was not preceded by any process or procedure, and that no reason for her dismissal was set out in the termination letter.
Having carefully considered the submissions and evidence before it, the Court is of the view that the Complainant was dismissed because of the deteriorating relationship with her line manager which was triggered by the impasse between them when the Complainant failed to return to work after confirming that she was fit and well on 28 January 2021.
In coming to this conclusion, the Court notes that the Complainant attributed the change in relations with Ms Falkingham to her diagnosis of depression. However, it evident that the relationship between the two became increasingly strained prior to the Complainant ever notifying Ms Falkingham that she was suffering from depression. The Complainant accepts that a number of workplace issues had arisen before this time. In her submission to the Court the Complainant states that relations deteriorated around Christmastime when her Ms Falkingham became increasingly dissatisfied and belligerent in how she interacted with her, and those communications became increasingly fractious in mid-January 2021.
It is evident from the exchange of emails between the Complainant and Ms Falkingham from 5 January 2021 up to 7 February 2021 that relations became increasingly strained during this period. The emails address matters around absence notification, payslips, payments for hours worked, and petty cash. It is clear that the Complainant and the Respondent disagreed on a number of points. After 28 January 2021, once fit to return to work, the Complainant expressed concerns about working in “The Hub”and queried hercontractual work location. The Respondent took issue with the Complainant’s refusal to work in “The Hub”,and her continued and uncertified absence from work. During this time the Complainant submitted a complaint to the Health and Safety Authority (HSA).
A series of emails were exchanged on 2 February 2021. Ms Falkingham advised the Complainant that - “Any reasonable person with a genuine desire to work would have come to The Hub to confirm the temperature if there was any doubt”and in the reply theComplainant stated: “do not question my work ethic…”.On 7 February 2021 the Complainant was put on notice that her employment would be terminate if she failed to attend work.
The Court has already determined that the Respondent was not on notice that the Complainant was suffering from a disability when her request to work from home was declined, and so finds no causal link between the actions of the employer in refusing that request and her stated disability.
After 8 February 2021 the Respondent was aware that the Complainant’s was suffering from“work related anxiety and depression”and waiting for the Complainant to submit a medical certificate confirming this diagnosis.
The Complainant takes issue with the lack of engagement by the employer about her disability and in particular points to the lack of replies from Ms Falkingham to emails she sent after 8 February 2021. The Respondent refutes that there was any pattern of delaying or not replying to the Complainant’s emails. Ms Falkingham’s evidence was that she was not in a position to respond to the emails received until 17 February 2021 as she was busy and in any event the Complainant was on sick leave. When she did reply she addressed queries raised and requested the Complainant to confirm her return to work the following week. In reply, the Complainant reiterated concerns about working in an unsafe environment and once again requested mediation. The Complainant then emailed on 22 February 2012 to advise that she was certified unfit to attend work until 11 March 2021.
The Respondent’s position is that the Complainant’s dismissal was solely due to the fact that she was not a good fit for the organisation, as she had become increasingly argumentative and confrontational in her email exchanges. Ms Falkingham’s evidence was that the Complainant’s attitude had changed completely, and she kept raising fresh issues. It was not the formal complaints per se that were an issue. It was the fact that her first action was to make a formal complaint rather than try and resolve an issue.
Ms Falkingham sent a letter dated 23 February 2021 to the Complainant advising her that her employment would terminate with effect from 2 March 2021. She acknowledged that the termination letter did not set out the reason for her dismissal.
The Complainant relies on the lack communication from the Respondent as a fact to ground her complaint of discriminatory dismissal. She also refers to the absence of a process or procedures in terminating her employment, and the fact that no reason for her dismissal was set out in the termination letter. In the Court’s view it may have been good practice and preferable for the Respondent to engage with the Complainant more proactively before terminating her employment, however, a failure to consult with the Complainant does not amount to discrimination on the ground of disability for the purposes of the Act.
While the Complainant make have valid issues with aspects of her employment relationship, and with the manner in which her employment was terminated during her probationary period, the Employment Equality Act is not the appropriate statutory provision for Court to assess or determine those matters. The only matter for consideration by the Court in the within appeal is a complaint that the termination of the Complainant’s employment was a discriminatory dismissal under the Employment Equality Acts on the grounds that the Complainant suffered from a stated disability under the Acts and was treated less favourably than an employee without such a disability would have been treated.
It is for the Complainant to establish that there is ‘prima facie’ evidence that her dismissal arose because of that disability and that it would not have arisen in the same set of circumstances with a person who did not have such a disability. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.
The Court has already determined that there was no causal link between the Complainant’s disability and the employer’s refusal of the Complainant’s request to work from home. The Court agrees with the Complainant’s assumption that her refusal to work in the “The Hub”may have been an influencing factor in her dismissal. However, in the view of the Court, having regard to the evidence before it and the testimonies of the witnesses, the primary reason for the termination of the Complainant’s employment can be attributed to the deterioration in the relationship between the Complainant and her manager. In the view of the Court both parties contributed to the deterioration of that relationship.
As a result, the Court finds that the Complainant has not established a causal link between her stated disability and the fact that she was dismissed. Accordingly, the Court finds that she was not subject to a discriminatory dismissal.
Having regard to all of the circumstances of this case, and for the reason outlined above, the Court finds that the Complainant was not subject to discrimination or a discriminatory dismissal on the grounds of disability.
For the reasons set out herein, the Court is satisfied that the Complainant was not discriminated against on the ground of disability.
The Decision of the Adjudication Officer is set aside.
The Court so determines.
|Signed on behalf of the Labour Court|
|6 September 2023||Deputy Chairman|
Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.