Sick Notes and Proving Disability

Background

The case of Louis O'Neill v City Break Apartments Limited City Break Apartments (ADJ-00042764) examines the circumstances under which an Adjudication Officer will construe medical certificates as providing a sufficient proof, from an employee to an employer, that they were suffering a disability, in accordance with the definition within the relevant legislation, creating an onus on the employer, to address same.

Mr O’Neill (the Complainant) brought a complaint under section 77 of the Employment Equality Act, 1998, against City Break Apartments Limited (the Respondents) to the Workplace relations Commission (WRC) alleging that he had been discriminated against by reason of his disability, that the Respondent treated him unlawfully by discriminating against him, in respect of his conditions of employment, and the Respondent failed to give him a reasonable accommodation. The Complainant also alleged that he was forced to resign, on account of this treatment. The Respondent denied of liability whatsoever, arguing that they had never been put on notice, prior to his filing complaints of his suffering disability.

Legislation and Case Law

Section 16 of the 1998 Act sets out the responsibility on an employer to make reasonable accommodation for an employee with a disability:

"(3) (a) For the purposes of this section, a person with 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) An 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 and advance in employment

(iii) To undergo training unless the measures would impose a disproportionate burden on the employer

(i) The financial and other costs entailed,

(ii) The scale and financial resources of the employer's business, and

(iii) The possibility of obtaining public funding or other assistance. 'appropriate measures', in relation to a person with a disability

(a) Means effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned,

(b) Without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) Does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself.”

ln the Supreme Court decision of Nano Nagle School v Marie Daly [2019] IESC 63 it was held that for the purposes of the entirety of Section l6 of the 1998 Act;

"a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation. Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance.”

After extensive discussion of the obligations on employers arising pursuant to Section l6 of the 1998 Act, McMenamin J summarised by stating that the fundamental criterion is "to consider -whether the degree of redistribution, or "accommodation", is such as to effectively create a different job entirely, which would almost inevitably impose a disproportionate burden on an employer.”

In the case of A Health and Fitness Club-v-A Worker EED037 wherein The Labour Court stated;

" This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before 15 coming to that view the employer would normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity. The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision. In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently. Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources. Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

Under Section 8 of the Employment Equality Act 1998, there is a prohibition on discrimination by employers under subsection (1):

“(1) In relation to—

(a) access to employment,

(b) conditions of employment, (c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker…………

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

The Complainant asserted that he was demoted, rather than accomodated.

In the event that an employee is able to establish that they are suffering from a disability, the existence of a disability, in itself, is not enough to establish a claim of discrimination.

In Margetts v.Graham Anthony and Company (EDA038) it was held:

“The Complainant must adduce other facts from which it may be inferred, in the balance of probabilities that an act of discrimination has occurred.”

With respect to whether an employer is on notice that an employee is suffering from a disability, the decision of the Labour Court in A Worker v. An Employer EDA 1927 is instructive. While factually distinct from the within case, as it related to an alleged discriminatory dismissal and failure to provide reasonable accommodation, it was held:

“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 within the meaning of the Employment Equality Acts to assist an employee.”

That decision goes on to state that the decision maker acting on behalf of the employer “was not provided with any medical evidence that the Complainant had a disability. He was provided with mere assertions to that effect by the Complainant.” The Court went on to say:

“As this court noted in Melbury Developments Ltd. v. Valpeters (EDA0917), albeit in a somewhat different context, ‘Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’…[the Employer] could not have been expected to accept the Complainant’s assertions in the absence of medical evidence.”

Decision

The Adjudication Officer highlighted the burden of proof in an employment equality complaint, when disability is cited.

Section 85A (1) of the Employment Equality Act, 1998 provides as follows:

—(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.”

This requires a complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him. If he succeeds in so doing, then, and only then, is it for the respondent to prove the contrary. The Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to a respondent. “Prima facie” evidence is evidence which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.

In Margetts v. Graham Anthony & Company Limited [EDA038] the evidential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place. The appellant must, on the balance of probabilities, prove those facts from which such inferences can be drawn. When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant. 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 Labour Court in the case of Melbury v. Valpeters [EDA0917] held as follows in its consideration of section 85(A):

“…provides for the allocation of the probative burden in cases within its ambit. 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, 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The interpretation section of the Employment Equality Act, 1998 provides the following definition of disability:

“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,

(d) a condition or malfunction which results in a person learning differently from a person withoutthe 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;

It is well settled that for an employee to come within the protections of the Act, they will first have to show that they suffer from a disability. This issue has been addressed by the Labour Court on a number of occasions included among which is the case of A Worker v. An Employer [EDA 1927] cited by the Respondent and also in the case of A Retail Company v. A Worker [EDA 2012], where the Labour Court held as follows:

“In circumstances where the fact of disability is in dispute, the Court can be assisted with evidence from medical practitioners. The failure of the Complainant to call such a practitioner in evidence means that the Court is left entirely to rely on the written evidence provided.”

“The Court has no medical expertise and relies heavily on medical evidence in cases such as this to determine the existence of a disability or otherwise. The burden of establishing this falls on the Complainant. In view of the fact that insufficient evidence has been provided to the Court on this issue, it is not possible for the Court to determine that the Complainant had a disability at the time in question.”

The Adjudication Officer determined that in the within case the written evidence provided was the medical certificates provided by the Complainant to the Respondent. The Labour Court in A Retail Company v. A Worker [EDA 2012] described the medical certificates in that case as “scant on detail.”

The Adjudication Officer found that the medical certificates within this case of Mr O’Neill, were not merely “scant on detail”, but devoid of any detail whatsoever. The Adjudication Officer went on to note that there had been no evidence of any evidence opened before them, in support of the claimed disability. The medical certificates were considered to be of no evidential value in any regard, as they merely provided dates in which they pertain to, with no narrative, at all, in respect of the nature or reason as to why the Complainant was being declared unfit for work. They simply alluded to “medical illness”. That being the case, a decision could not be made in favour of Mr. O’Neill.

Takeaway

The takeaway for employees considering bringing a complaint alleging that their employer has discriminated against them on the grounds of their disability, is to determine in advance what evidence has been provided to the employer prior to filing the complaint, that they in fact, suffered a disability. If an employee fails to inform their employer that they are suffering a disability, an employer cannot be expected to provide a reasonable accommodation, in respect of an illness or injury of which they are unaware.

For employers, defending a potential complaint alleging discrimination on the grounds of disability, a first course of action, is to review if the employee ever brought the supposed disability to their attention, in the first place.

Further information

This article was prepared by Barry Crushell for informational purposes only. For further advice, please email contact@crushell.ie or contact the offices of Crushell & Co Solicitors.

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