What is a Disability under Employment Equality Legislation? – Absence of Medical Testimony May be Fatal

The case of a A Retail Company and A Worker ADJ00005949 concerned an appeal by an employee to the Labour Court in respect of a claim for discrimination on the grounds of disability. A copy of the decision can be found here.BackgroundThe employee in this case was a personnel manager in one of the company stores and was a long standing employee. The employer undertook a reorganisation, a result of which was that there was less need for personnel managers. An offer of voluntary severance was made to employees but the employee in this case was uninterested.A dispute then arose as to the terms of the employee’s contract including whether the employee was required to support an additional store as well as the store she was employed in. The employee initiated the grievance procedure and then went on extended sick leave citing work place stress / stress at work.The employee initially lose her case for discrimination before the Workplace Relations Commission and appealed the case to the Labour Court.Before the Labour Court, a preliminary issue arose as to whether the employee was even suffering from a disability at work pursuant to Section 2 of the Employment Equality Acts which defines a disability as “a condition, illness or disease which affects a person’ s thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour”The employee alleged that she was suffering from workplace stress which is considered a disability under Employment Equality legislation and cited a number of cases in support of her case namely An Employee v. Bus Eireann (2003) ELR 351 whereby it was held that a heart condition was a disability under the Acts. In Mr. O v A Named Company DEC-E2003-052 it was held that work related stress may amount to a disability and in A Government Department v A Worker EDA094 it was held that a condition that manifests in a minimal level of symptoms may be classified as a disability.The complainant employee also cited the European cases of Chacon Navas v Eurest (C-13/05) and Jette Ring v Dansk (C-335/11) whereby it was established that a disability was any condition that hinders full and effective participation in the workforce.The employee also submitted medical certificates in support of her condition including a medical report from her doctor.The defendant employer argued that the employee in question was not suffering from a disability and cited An Employer And A Worker EDA 1927 whereby the the Labour Court noted that the Complainant in that case had only identified a disability to his employer after his dismissal and that no medical evidence of disability had been provided prior to dismissal and, therefore, the dismissal was not discriminatory. It also noted the case of A Worker And a Government Department EDA094  whereby the Court drew distinction between the ordinary human reaction to stressful situations and psychiatric illness and described suggestions that would blur the distinctions as an ‘absurdity’.The employer noted that there was no evidence at all of alleged depression even in the medical report submitted and there was no evidence of any medication being prescribed for any of the alleged manifestations of stress.The LawThe Labour Court looked at the definition of disability under the Employment Equality Acts which 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;DecisionThe Labour Court considered whether the employee was in fact suffering from a disability and commented:“It not sufficient, therefore, for the Complainant to rely on ‘stress’, however caused, as grounds for a claim to have a disability. It is necessary for her to show that she had a disability as defined above in the Acts. 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 to rely entirely on the written evidence provided. The medical certificates provided to the employer are scant on detail, referring only to ‘stress/work related stress’, which is of no assistance to the Court.It further noted“The only evidence of any substance put to the Court in support of a claimed disability is a medical report from the Complainant’s GP. However, this report makes no reference to depression and contains no details of any prescribed medication. The report refers to symptoms arising from stress such as sleep difficulties and emotional fragility but in the absence of medical testimony, it is not possible for the Court to get more useful detail. The report refers to the Complainant being ‘anxious’ but little detail of the sort that the Court would require is provided. In short, this report is of limited value”In dismissing the employee’s appeal, the Court concluded“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. As the Complainant has not met the burden of proof, it follows that the claim must fail”