Case Number: ADJ-00017370. Workplace Relations Commission

• Docket Number: ADJ-00017370
• Hearing Date: 08 July 2019
• Date: 09 June 2020
• Court: Workplace Relations Commission

Procedure:

On the 3rd October 2018, the complainant submitted the complaint pursuant to the Equal Status Act. The complainant attended the adjudication. Cathal McGreal BL, instructed by the Chief State Solicitor’s Office, represented the respondent and five witnesses attended on its behalf.

I have exercised my discretion to anonymise the decision.

In accordance with section 25 of the Equal Status Act, 2000 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.

Background:

The complainant asserts discrimination and harassment on grounds of disability, myalgic encephalomyelitis (‘ME’). The respondent denies the claim.

Summary of Complainant’s Case:

The complainant outlined that her disability is ME disease. She outlined that the symptoms are relevant to the claim. ME or Chronic Fatigue Syndrome is not uncommon and can have an incredibly debilitating effect. The complainant referred to statements made by specialists in the area. The complainant outlined that the World Health Organisation recognised the condition as a neurological condition in 1969. She outlined that governments have since sought to recalibrate this as Chronic Fatigue Syndrome, i.e. to downplay the condition. The complainant said that she was formally diagnosed with ME in January 2017 and had previously been diagnosed with depression. She referred to the letter from the consultant of the 13th November 2018 and the other medical information. The complainant outlined that the symptoms involved a lot of physical pain. There are sudden crashes and now had an impact for a few days. She outlined that there is a degree of cognitive impairment. The complainant outlined that she gets stuck when she needs to focus; her short-term memory is poor. This made it difficult for her to leave the house. She has managed this well but is prone to infections. She usually uses a neck brace and headphones to exclude noise. The complainant referred to the letter of the 18th July 2018 and that this was the first time she was late in submitting a return to the respondent public body, in this case for the year 2016. She was able to file a ‘Form 12’ as the amount owed was below €5,000 per year. She described the online system as a nightmare and would have baffled her anyway. She had been able to complete the 2015 forms by submitting a Form 11 when she could have filed a Form 12. The complainant outlined that she is socially isolated, so it is harder for her to tackle issues, such as filing returns. The complainant said that she was unable to sort the Digital Certificate required for the online system. She could not find it on her laptop. She was advised that she could deactivate the digital certificate and a new one was issued. She outlined that it was a real headache as she could not deal with the same respondent staff member twice. While people were helpful, she had to explain the circumstances every time and they had a limited sphere of knowledge. The complainant outlined that the deadline was the 14th November 2017 so by the 2nd December 2017, she was late. She and her brother were trying to do the Form 11. While the figures were pre-populated, she made errors. They could not complete the forms and thought that the insurer might have submitted the wrong figures relating to her income. The complainant said that she was then too sick to address this matter. In March 2018, the complainant realised that she had been filling in the 2017 form but not the 2016 form. The regional office insisted that she file a Form 11 for 2016. The complainant said that the income protection was income and there was also rental income. Her accountants had not de-registered her. The two staff members kept mentioning the firm of accountants, but the complainant had filed the forms herself the previous year. The complainant described the staff members as being unreasonable and aggressive, unlike other staff members who were helpful. The complainant had to confirm everything to them in writing. In June 2018, the complainant sought to de-register, but was then sent a message on the 16th June to ask about the properties she owned. The complainant did not pick up the message as it went to the online system. They wrote on the 2nd July to say that because of her failure to reply, they would issue a Notice of Assessment which the complainant took to be an audit. The complainant phoned straight away, and the staff member was very aggressive. The complainant had not seen the email when she opened the letter. The staff member asked what properties the complainant owned and what did she own in [county]. The complainant outlined that she knew that the respondent was not entitled to ask aggressive questions. She had answered the questions and replied that she had disclosed this in her returns. The complainant informed the respondent staff member that she was sick and in bed. The complainant outlined that she would not have been treated in this way had she said she had cancer; the way she was treated was because she had ME. The complainant said that she was not aggressive in this conversation. The complainant outlined that she wrote to the respondent of the 4th July regarding what she owed. She outlined that while she had spoken with this staff member before and there was previous aggression, what happened on this occasion was worse. The staff member repeatedly asked about her former accountants. The complainant said that the respondent blocked her de-registration and because of this, she could not file a Form 12. One staff member kept referring to her as being ‘the solicitor’, her former registered address and the firm of accountants, but the complainant replied that she was on Disability Benefit. The complainant outlined that the difficult phone call with a staff member took place on the 7th July. The complainant took notes of the phone on that day. She acknowledged that she was also ‘quite hostile’ during this phone call. The staff member recognised her as being ‘the solicitor’. The staff member insisted she file a Form 11 and not a Form 12. The complainant described this as a ‘furious phone call’. The complainant said that she could not find a Form 12 online for the 2016 year as it had disappeared. The complainant was able to get the form from a friend who works in an accountant’s office. The complainant asked the staff member where should she file the return. The complainant outlined that the respondent regional office was very obstructive and wanted to keep this on their desk. She said that they wanted to send this to one office of the respondent rather than another. The complainant outlined that because of her impairments, it was easier for her to fill out a form with a pen. She said that the respondent phone numbers are all premium, even though they were not listed as such. She submitted that this is indirectly discriminatory for those with ME disease as they had to start again to explain her story. The complainant said that she had to tell her story 1,000 times and the respondent had no memo system. She outlined that the respondent had not provided reasonable accommodation. The complainant outlined that in March 2018, a staff member insisted that the complainant used a form 11. The complainant said that she was trying to catch her out by asking how much the rental income was. The complainant said that she felt targeted by her reference to the complainant being ‘the solicitor’. The complainant described this as ‘ugly’. She had twice written to the regional office, but they still questioned her. The complainant said that she wanted to know why the staff member advised her to send the return to a different respondent office. The complainant outlined that a staff member demanded the address of the complainant’s rental property. The complainant said that she was aware that the respondent would already have this information from the registration of the tenancy with the Residential Tenancies Board. She outlined that the respondent was trying to catch her out by not stating the address. The complainant outlined that this was a nasty campaign of intimidation and harassment. Taking the case to the Workplace Relations Commission was bad for her health and this arose from her dealings with the regional office. The complainant reverted to her previous regional office in July 2018. The 2016 and 2017 returns were submitted, as was the return for 2018. The complainant said that she wanted to question what went on with the regional office. She explained her circumstances in every phone call and why she was not able to work as a solicitor anymore and that she was in receipt of disability benefit. In closing, the complainant outlined how rare disability harassment claims were. She said that people with ME hold a protest every year to highlight the issues arising with the illness. The Equal Status Act required that she not be treated less favourably...