Case Number: ADJ-00001445. Workplace Relations Commission

• Judgment Date: 01 February 2017
• Year: 2017
• Docket Number: ADJ-00001445
• Court: Workplace Relations Commission
• Parties: A Production Manager v A Radio Station

ADJUDICATION OFFICER DECISION Adjudication Decision Reference: ADJ-00001445 Complaint for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00000892-001	17/11/2015

Date of Adjudication Hearing: 21/11/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 79 of the Employment Equality Act, 1998, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Attendance at Hearing:

By	Complainant	Respondent
Parties	A Production Manager	A Radio Station

Background

The Complainant has been employed since 14^th March 1997. She is currently Commercial Production Manager. She is paid €55,546 per annum. She has claimed that she has been discriminated against on grounds of her disability of mental illness. She has sought compensation.

Preliminary Point - Sec 19 Equal pay

Respondent

The Complainant made reference in her complaint form to “I have not received equal pay”. She then went on to concentrate on an alleged breach of Sec 6 that she had been discriminated against on grounds of her mental illness. The Respondent has sought that the complaint under Sec 6 is the only complaint before this hearing.

Complainant

The Complainant confirmed that the only complaint being prosecuted is an alleged breach of Sec 6 discrimination on grounds of disability / mental illness.

Decision

The only complaint being investigated and adjudicated upon is discrimination on grounds of disability/mental illness.

Complainant’s Submission and Presentation: CA -00000892-001

Over the last number of years the Complainant’s health both physical and mental has deteriorated significantly. She lost the sight in one eye, was diagnosed with MS, she had an ovary removed, and she struggled with anxiety, depression and work related stress. This was all well known to the Respondent. She at all times carried out her work diligently. The Respondent had no HR department at that time and so she could not voice her grievance. There was no grievance procedure. On 18^th March 2015 she was called to the office of the Sales Director and told that she was being suspended for “texts and stuff”. She was not provided with any further information and she was told to go home. She became overcome with stress, anxiety and fear. She was off her medication as she could not afford it and could not think straight. This led to an attempt at suicide. She was hospitalised for a number of weeks. On 16^th April the Respondent wrote to her to advise that her sick pay would be stopped by the end of April 2015. This communication was shocking to her. The Respondent was requested to reinstate her salary and pay her during her sick leave as it had done throughout her career. She was unaware of a sick pay policy. In any event the policy states “normal maximum company sick pay is 20 days. This clearly indicates that there may be time, which is deemed not normal. The Respondent’s letter of 20^th May 2015 admitted that sick pay had been paid in the past without deduction. This clearly gives rise to a clear inference that the Respondent had removed her from the sick pay scheme. She further implored the Respondent to pay her sick pay; this was done through her legal advisers. Eventually she had no option but to refer the matter to the Workplace Relations Commission (WRC). Her position is that she was removed from the sick pay scheme due entirely to the fact that she was and is suffering from a psychological condition rather than a physical one. And that removal for that reason constitutes discrimination on grounds of disability pursuant to Sec 6(2) (g) of the employment Equality Act 1998. Indeed Sec 6(2)(g) specifically confirms that discrimination can arise where one person is treated less favourably than “a person with a different disability” by an employer and it is submitted that this is indeed the factual situation before this hearing. A prima facie case has been established as she has been diagnosed with an ongoing depressive illness.

It is an implied term of her contract that she is entitled to long term sick pay where it has been the clear position of the Respondent to pay it. They cited Charleton v HH The Aga Khan’s Studs Societe Civille [1998] IEHC186, Marrisson v Bell [1939] I All ER 745 and Collette Rooney v Ossie J. Kilkenny and Brian P Murphy [2001] ELR 129.

She was discriminated against on grounds of disability and was treated less favourably than other members of staff. Upon learning that the Complainant’s illness was psychological in nature rather than a physical condition the Respondent removed her sick pay. She has always been paid during sick leave without limitation however the previous illnesses were physical. The Respondents treatment of the Complainant indicates a failure to recognise its obligations towards her living with a recognised and diagnosed disability.

She is seeking compensation.

Respondent’s Submission and Presentation:

The Respondent stated that she commenced employment in 2002, not 1997 as alleged. The contract that she was...