ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023345
A Development Manager
A Technology Company
Des Kavanagh Des J. Kavanagh HR Consultancy Ltd.
MP Guinness BL instructed by Eversheds Solicitors
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 10/03/2020
Workplace Relations Commission Adjudication Officer: Marian Duffy
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
In the interest of the complainant’s privacy I have anonymised this decision.
The complainant was employed by the respondent on the 5th of November 2018 as a partner development manager. He was paid €60,000 per annum + bonus and he worked 39 hours per week. His employment was terminated on the 14th of March 2019. He is claiming that he was discriminated against on the disability ground in relation to his conditions of employment, that there was a failure to provide reasonable accommodation, that he was dismissed and harassed because of his disability.
Summary of Complainant’s Case:
The complainant said that he suffers from Crohn's disease and that he required reasonable accommodation in his hours of work. He said he was in another job and that he applied for this job because it offered better conditions of employment. He said that he had reasonable accommodation in his old job and he started work at 7am and finished at 4pm He was interviewed a number of times for this position and during the last interview he told the respondent that he had booked holidays to Brazil during the period the 12th December 2018 to the 14th of January 2019. He was told that this would not be a problem and it was suggested to him that he might have to take unpaid leave. He also asked if he could start work at 7am and finish at 3.30 and he was told that the hours were flexible.
The complainant said that he commenced employment with the company on probation on the 5th of November 2018 and he was provided with 6 weeks training as part of the team. When he joined the company, he told his manager about the holidays and she informed him that the best option would be for him to work remotely from Brazil and remain on the payroll. The complainant said he wanted to retain the shift hours (7 a.m. to 3 30 p.m.) that he had was his previous employer. It was agreed that he would work from 7:30 a.m. to 4 p.m. This helped him to avoid the heaviest traffic and avoid long commutes which is important in view of his medical condition
He said that he informed the employer about his disability on the 17th January 2019. He was not required to do a medical examination before being employed. He advised the respondent of his disability and OH asked him to complete a medical questionnaire. He was told that this should have been done at the recruitment stage.
The complainant said that he experienced initial problems in relation to salary payments which took over 8 weeks to resolve. He had an issue with the fellow employee who made racist remarks towards him which the company was slow to resolve. He said he felt pressurised by his manager to drop this complaint. On 17th February 2019 he attended a meeting with HR to resolve the issue relating to the racist remark. He took the opportunity at this meeting to advise the HR manager of his medical condition he was referred to the company's occupational health which is based on site and HR also asked him to advise his manager.
The complainant also met with his manager and discussed his condition with her. He explained that when he has flare-ups he needs to use the bathroom at short notice and that commuting was a difficult challenge particularly on Friday's. He requested that he be allowed to finish early on Fridays and work from home on Friday afternoons, but this request was refused.
In an email dated 18th of January 2019 the complainant’s Manager thanked him for his openness about his health and said she would support him and offer accommodation to him on an ad-hoc basis. This did not include working from home every Friday afternoon which complainant had requested because of the traffic delays he experience on Fridays.
The complainant believes that his problems with his manager only emerged following sharing his concerns with her about his health. On the 21st of January 2019 the complainant e-mailed his manager confirming his health problems and again requesting that he allowed to work from home on Friday afternoons. He went on to explain the impact of sitting in traffic for long periods has on his health and that he was waiting on an appointment with his specialist. His manager replied on the 22nd of January and said she was happy to accommodate team members and ensure flexibility. She went on to say that the complainant already had flexibility and was leaving work at 4 p.m. but she could not commit to set regular working from home arrangements and would only support request on an ad-hoc basis.
The 4th of February 2019 the complainant met with occupational health service. She helped him complete the first part of his health assessment. She told him this should have been completed before his recruitment. She asked him to get a medical report from his doctor and then OH would make an appointment with the company's doctor to complete the process.
On the 5th of February 2019 the complainant's manager conducted a mid-probation review following which set out her concerns about his performance. The complainant was alarmed by the contents of her letter and sought advice about how best to reply to it.
The complainant said that after telling his manager about his health condition she requested him to take annual leave for the days he was attending clinics even though he worked part of these days. He attended hospital every 6 weeks for an infusion which took a couple of hours to administer. To comply with his managers instructions, he got a medical certificate from the hospital and uploaded to the leave system. After discussions with HR, he was advised that he did not need to take annual leave or sick leave when he was attending a doctor's appointment.
On the 4th of March 2019, the complainant emailed his manager to say that he had been in contact with HR about the sick absence policy and to inform her that he had an appointment on 13th of March 2019 with his doctor. He also went on to state that he was dealing with HR and occupational health and he would prefer to keep his health mattress be kept private with them.
On the 7th of March the complainant had a meeting with his manager in which several issues relating to his health were raised. He was told that he should be working from 8 a.m. to 4.30 p.m., that she would not commit to a 7:30 am starting time on an ongoing basis, that he should report back to work after clinic appointments, that appointments should not take more than 2 hours, that he should submit details of his medical appointments to her (he was submitting them to HR) and if he did not comply with your instructions he would not be paid for the days he attended clinics.
On the 7th of March the complainant informed OH that he was still waiting for the report from a specialist and he understood from his consultant that it would be sent by post in the next week. OH, told him that the meeting with the doctor would be moved to the next week when he had a letter from his specialist. She also told him that she had reviewed his health questionnaire and that he would have needed to have a review with OH Doctor before starting work with the company and if it is now requesting adjustments to his work she would need information about his health.
On the 13th of March 2019 the complainant said he collected a copy of the consultant’s report when he was attending the consultant and he provided it to occupational health on the 14th of March 2019. A consultation was arranged with the OH doctor for the following week.
The complainant said that he was called to a meeting with HR and his manager on the 14th March he was informed that he was being dismissed because he did not pass his probation
It was submitted by the complainant’s representative that the complainant was concerned about his treatment by his manager from the time he notified her of his disability up to his dismissal in March. He submitted that his manager requested meetings late in the afternoon or just before he finished at 4 p.m., which meant he would miss an opportunity to drive home in less than an hour and would end up in traffic for 2 hours or more. On the 7th of March he had a meeting that commenced at 3:30 p.m. and went on for an hour and a half. On the 8th of March he was required to attend a meeting that went on from lunch time until 5 p.m. and by the time he got home through the traffic he was experiencing problems with his health condition. On the 12th March the complainant’s manager again asked him to meet with her at 4 p.m. the complainant responded by saying that his shift finished at 4 p.m. and as he had already explained for health reasons it was not possible to have a meeting at that time and requested that she schedule it for a different time.
The complainant believed he was being harassed by his manager and he contacted his Union official. He was unexpectedly called to a meeting on the 12th of March and his Union official advised him that if it was a disciplinary meeting he should seek an adjournment to get a witness. The complainant on attending the meeting realised it was a disciplinary meeting and requested a deferral so that he could bring a witness, and this was refused he was summarily dismissed.
It was submitted that the complainant was treated differently than other employees. The complainant like other members of his team were invited to visit countries to meet partners with whom they were doing business and he was refused on three different occasions while three other employees could take up invitations. He was also refused permission to attend a dinner in Dublin with Italian customers. it was submitted that the complainant was refused permission to leave early and work from home on Friday afternoons, but other colleagues are facilitated with similar arrangements.
It was submitted that the complainant was dismissed and denied his rights under SI 146/2000. He was not given adequate notice of the disciplinary meeting nor notification of the concerns by management. He was not given adequate time to prepare his defence and he was denied a right to representation.
It was submitted that the complainant was denied reasonable accommodation in accordance with section 16 and be after Employment Equality Act 1998. I was referred to the Labour Court decision in an Employer vs A Worker (2005) ELR159 in relation to reasonable accommodation. The LC stated “This can involve affording the person with a disability more favourable treatment than would be accorded to employee without a disability. Thus it may be necessary to consider such matters asadjusting the person's attendance hours or to allow them to work partially from home..” The company did not ask the complainant to complete a medical questionnaire prior to recruitment which is the usual practice. If this had happened, it would have elicited information about his medical condition so that reasonable accommodation could have been put in place prior to his recruitment.
The complainant told the respondent about his medical condition on the 17th of January 2019. He was referred to OH, but no reasonable attempts were made by the employer to establish the complainant’s immediate needs for reasonable accommodation. An early meeting should have been arranged with the OH doctor where his symptoms and his treatment and his condition could have been outlined without the need for the complainant to get a consultant’s report prior to meeting the occupational health doctor. The respondent’s response to the complainant’s request for reasonable accommodation to work from home on a Friday afternoon was completely inadequate. His manager told him that she would deal with his request on an ad hoc basis, but this does not comply with the provisions of the Employment Equality Act nor the case law on the duty to provide reasonable accommodation. The complainant wanted to work a raster of 7 a.m. to 3:30 p.m., but he compromised on a roster of 7:30 a.m. to 4 p.m. His manager was seeking to change this from 8 a.m. to 4:30 p.m. and this would have significantly extended his computing time. It was submitted that the attitude of the complainant’s manager changed when she was informed of his disability. She continuously raised issues about his clinic appointments and required medical certificates to cover his attendance and asked him to take holidays to cover his regular clinic appointments in contravention of the company policy on doctor appointments.
It was submitted that the respondent completely failed to understand the importance of providing reasonable accommodation so that flare-ups off the complainant’s medical condition could be minimised. The company arranged an appointment with the occupational health doctor on the 20th of March 2019. The complainant had anticipated that the doctor would recommend the reasonable accommodation he was seeking however he was dismissed in advance of this meeting In the case of A Waiter v A Hotel ADJ-000 14091 the Adjudicator stated that once notified of the complainant’s disability, the respondent “ was at that point under an obligation to make further enquiries to ascertain the extent of the complainant’s disability and to engage with the complainant to ascertain whether he would be fully capable of doing the job with the provision of reasonable accommodation measures.” In this case the complainant’s manager did nothing to establish the extent of his disability or to have occupational health advisor on his immediate needs for reasonable accommodation. He was dismissed one week before the appointment with the OH doctor was scheduled.
It was submitted that the complainant was harassed by the manager in that she was asking him to take holidays to attend clinics. Despise advising her of his need to finish work at 4pm, she continued to start meetings close to 4 p.m. The complainant sought to avoid discussions about his health with his manager, but she continued to engage in discussions about health which he found uncomfortable.
It was submitted that the reasons given for the dismissal were spurious and do not stand up to scrutiny. It was submitted that his performance was of a similar level to his colleagues who were not dismissed. In a letter following the probation review on the 5th of February, the complainant’s manager referred to expectations of him over the following 3 months. However, she dismissed him just a month later despite a positive recommendation of him on the 19th of February. He was also complimented on his work by a manager on the 12th of March. It was admitted that most of the issues raised in the dismissal letter were not issues which are addressed in his mid-probation review.
It was submitted that the complainant was not provided with reasonable accommodation, he was harassed by his manager and he was dismissed because of his disability.
Summary of Respondent’s Case:
The complainant commenced employment with the respondent on the 5th of November 2018 as a PDM specialist, which is a sales role, reporting to the PDM manager. His manager began receiving some negative feedback on the complainant’s performance from almost the commencement of his employment. She received reports from a colleague in Portugal that the complainant was a challenge to work with and was poor at following up with partners request. At the end of November, the team attended a sales events and a colleague advised that the complainant was difficult to engage with. The manager wanted to give the complainant time to settle in his new role, so she did not raise this feedback with him in his first weeks and the employment. On the 20th of November the complainant sent an email to his manager informing her that he had a medical appointment the following day at 11:45 a.m. He then sought meeting with her to discuss working remotely from Brazil for 4 weeks over Christmas. At the meeting the complainant advised his manager that during the recruitment process, the respondent’s recruitment team, had approved his working remotely from Brazil for 4 weeks from the 12th of December 2018 to the 11th of January 2019. The manager did not challenge veracity of the statement, but she learned later that the recruitment team no power to give such a commitment during the recruitment process. The complainant emailed her with the dates he would be in Brazil.
There were issues with the complainant’s performance while he was in Brazil. He cancelled schedule meetings with no explanation and failed to attend face-to-face meetings his manager requested and dialled in instead. He did not demonstrate the skills the respondent had anticipated of him given his experience.
On his return to Ireland on the 11th of January, the complainant met with both HR and his manager. The respondent’s performance management system provides for quarterly formal meetings with all employees to update on their performance. These meetings are known as connects. On the 21st of January 2019, the complainant had a connect meeting with his manager. A formal connect document was completed by the manager and the complainant setting out his performers over the 8 week period. The manager described the complainant's performance as challenging and identified issues with creating leads and expressed disappointment with his engagement while remote working It is also noted that the complainant did not attend training or meetings and that he had displayed little evidence of the skills he was hired for.
On the 17th of January the complainant met with the HR manager to discuss issues which the complainant had already raised about alleged racist comments made by a colleague in December. At that meeting he advised HR of his Crohn's disease and said that he had already advised his manager about his condition. He was immediately referred to the company's occupational health nurse for recommendations on adjustments as is a practice for any employee with a medical condition. On 18th of January the manager emailed him advising him of the availability of occupational health nurse and she also referred to his request to work from home on Friday afternoons. She confirmed that she wanted to be a supportive as possible, but she could not commit to him working from home every Friday. In a response email of 21st of January the complainant raised the issue about a comment made by a colleague that he perceived as racist and, in that email, he again requested that he allowed to work from home on Friday afternoons to avoid the traffic and to improve his work life balance. His manager responded on the 22nd of January setting out the flexibility she had already afforded to him and telling him that she could not accommodate his request to work from home on a Friday afternoon except on an ad-hoc basis.
The complainant had a formal mid probation review with his manager on the 5th of February. She expressed concerns about its performance in the first 3 months and followed up with an email setting out her concerns. The complainant replied on the 27th of February, recording his reasons for the performance issues identified. On the 4th of March the manager emailed the complainant about his email of the 27th February and other emails on the complainant reference his medical condition. She assured him that it was a medical condition was a private matter between him and the occupational health and not something he needed to discuss with her or anybody else. The manager had a difficult meeting with the complainant on the 7th of March in which they discussed his email of the 27th and other issues including his own or unauthorised decision to put on his email signature, that is working hours are 7 a.m. to 3:30 which were not his contracted hours. The manager scheduled a one-to-one meeting with the complainant on the 12th of March, but the complainant requested a change to the meeting date and it was changed to Thursday the 14th of March at 4 p.m. The complainant responded requesting a further change saying that his shift finished at 4 p.m. and went on to say that he had already explained this was for health reasons.
The manager forwarded the email to HR who confirmed with OH that was no advice from them concerning his finishing time as they were still awaiting information from the complainant.
Subsequently, a decision was made that the complainant was not fit for the responded organisation due to a combination of his poor performance, missing deadlines, failure to attend meetings and his attitude to working hours (including the failure to establish that he had approval to work remotely in Brazil in December) and unilaterally changing his daily working hours. At a meeting on the 14th of March the complainant was advised of this decision and was issued with a letter confirming his failure to pass his probation.
It was submitted that the respondent was very happy to accommodate the complainant’s medical condition and accommodate many employees with medical conditions including employees with Crohn's disease cancer and a variety of other disabilities. They had embarked on a path to understand the accommodation needed by the complainant. The occupational health nurse having received an email from HR on the 17th of January checked the medical system and found that there was no completed pre placement questionnaire on file. The complainant contacted her by email on the 28th of January. She arranged to meet with him on the 30th of January 2019 and explain the medical process to him. He was given a standard form for his treating physician to complete and a new questionnaire was sent to him. The questionnaire was completed and reviewed, and the occupational health nurse was of the view you that as significant health issues were identified, a meeting with the occupational health doctor was warranted to advise on the long-term adjustments required. He was asked to get a letter from this consultant so as to inform OH on his medical condition. On the 7th March 2019 OH still not received a copy of the complainant’s consultant’s letter and she arrange a further review with him this is cancelled. The OH nurse then informed the complainant that she was organising an appointment with the OH doctor for the following Thursday the 20th March in the hope that the consultant’s letter would have arrived by then. The following day the complainant confirmed that he had received a letter from his doctor. The appointment did not go ahead because the complainant failed his probation on the 14th of March.
It was submitted that the reasons the complainant failed his probation were entirely unrelated to his medical condition. The medical process was entirely different and separate process to the probation process and the complainant’s medical condition was dealt with in the same way as all employees’ medical conditions are dealt with.
The respondent’s HR manager said and evidence that as soon as she was told by the complainant about his disability she made an onward referral to 0H she said the company have almost 100 employees who require reasonable accommodation across the company. She said I just was not within the power of the manager to give reasonable accommodation, but she could provide it on an ad hoc basis. She said that the complainant claimed that he had been granted flexible working hours by the recruiter and that he was given permission to work from Brazil for a number of weeks. She said that she investigated this with the recruitment company and she believes that no such permission was given to work remotely, and he was not informed of any flexible working hours. She said the complainant came to a meeting to discuss an issue he had with a colleague and he declared he had Crohn’s disease.
She said that the complaint’s manager told her at the end of January that he was seeking to finish early on a Friday and to work from home in the afternoon. She said OH would tell her if someone needed an adjustment and it would then be implemented. She said that the complainant attended the OH nurse and it was reported back to her that the accommodation to leave early on a Friday and work from home was not necessary. If the OH nurse is not of the opinion that reasonable accommodation is required immediately the matter is referred to the OH doctor.
The complainant’s manager said she was head for Germany and Western Europe and the complainant was hired to deal with Italy the position was a senior position and he was provided training in the first weeks of his employment. She said that by week five she would have expected the complainant to be fully operational, but he was slow to get leads in Italy. She said she had to help him with relationship building as his initial efforts were not productive. A couple of weeks after he started employment she said the complainant approached her and said he had permission to work remotely from Brazil. She agreed as she believed he could easily work remotely from Brazil. She denied that the complainant said he has permission to take unpaid leave and that it was her that suggested he work remotely. She said that working with the complainant from Brazil was challenging and there were difficulties with the biweekly meetings. She said he also missed a global meeting because as he was travelling back from Brazil.
The Connects form which is the quarterly review was posted to the system. Initially the complainant had an opportunity to make comments and she filled it in as well before it was posted. At the meeting, she went through the feedback with the complainant and then followed it up with written comments. She said she had a mid-probation review with him in February and there was little evidence of improvement in the complainant’s performance.
She said that the complainant informed her of his Crohn’s disease at a meeting in mid-January. She asked if there was anything she could do to assist him, and he requested that he work from home on a Friday afternoon. She told him that she could only provide this on an ad hoc basis. She said she could provide short-term reasonable accommodation. She referred the complainant to occupational health.
She said that nobody on her team were allowed to work from home and she does not agree with the complainant’s contention that some employees worked from home.
She said the complainant emailed her a response to the feedback on the midterm review, but she was away on holidays. She arranged a one to one meeting with him on the 4th of March to discuss it. She said that the meeting was challenging but she is cognisant that English is not his first language. She said that she found his behaviour aggressive. She raised an issue about the footer on his email which indicated his hours of work were 7 am to 3:30 pm. She said that she told him that she couldn’t agree to these hours every day. She said that given the different time zones in the countries he was dealing with the working hours are not fixed and he could work whatever hours suitable to these countries as long as the business needs were met. However, she said that she could not agree that 7 am to 3.30 were his working hours every day.
She said she requested evidence of the complainant’s medical appointments which was not provided. As the complainant was out of the office for more than a half a day she believed he needed a medical certificate. She said she was not questioning his absences and that she has always paid employees for sick leave.
She tried to arrange an appointment for a one-to-one meeting with the complainant on the morning of the 12th of March and the complainant requested a change of date and she suggested 4 pm. The complainant responded by saying his shift was over at 4 pm and this was for health reasons. She said this was not the case as he had not ever been notified of any set finishing time. She said she could not agree to any reasonable accommodation except an ad hoc basis until OH give her advice on what the complainant needed.
She said that there were a number of factors which influenced the decision to dismiss the complainant including performance. The manager accepted that the complainant did build relationships with customers and that he did some good work for which she gave him recognition
The respondent relies on the Advocate Generals opinion in Carlos Enrique Ruiz Conejero vs Ferroser Servicios Auxiliaries SA C-270/16 in relation to the claim for reasonable accommodation. It was stated “it is plain that that application will be triggered where the employee has told his employer off his disability and its extent, together with all surrounding circumstances. Provided no disproportionate burden is placed upon him, the employer will then be in a position to take active steps to assist employee and provide reasonable accommodation... even where the disability is manifest, however, that does not mean that the employer will in every case be aware of the appropriate measures - or all of the appropriate measures that may be required in order to provide reasonable accommodation for the employee. The employer may ask the employee to provide further details, thereby enabling support and assistance to be provided where possible. If the employee refuses to provide that information or is unwilling to communicated it, he cannot be compelled to do so. He may prefer not to participate in such an exercise for reasons associated with what he perceives to be his personal dignity or independence. In circumstances, the employer will be limited in what he can do to taking steps that are obvious. The result of that action may, or indeed may not, achieve the results of assimilating the employee into the workforce. There can, though, be no duty on the employer to go any further.”
It was submitted that the employer acted reasonably and responsibly in the way it dealt with the complaint’s illness. He was referred to OH and was asked to obtain a report from his consultant so that this could be given to the OH doctor. This was not provided by the complainant until the 14th of March. During this period the complainant’s manager had made it clear that she was happy to accommodate the complainant on an ad-hoc basis when he had a flare up in his medical condition. This medical process was entirely separate to the probation review process.
It was submitted that there were issues with the complainant from the outset of employment which were separate and distinct from his illness. He failed to pass his probation for a variety of shortcomings totally unrelated to his illness. It is denied that he was discriminatory dismissed.
It was submitted that the complainant was not harassed in relation to his hospital appointments. His hospital appointments were accommodated at all times. In relation to meetings at the end of his shift, the complainant decided without any prior approval that he would work certain hours and suggested that he had approval because of his health issues which was untrue. Notwithstanding this it was submitted that the complainant was accommodated when he indicated that he was not free for meetings or when he sought to change the date or time.
Findings and Conclusions:
The matter for decision is whether the respondent failed to provide appropriate measures in accordance with 16 of the Employment Equality Act 1998 and whether he was dismissed for reasons connected with his disability. He is also claiming that he was harassed on the disability ground. The respondent denies that (i) the complainant was dismissed for discriminatory reasons, (ii) that the respondent failed to provide reasonable accommodation and (iii) that he was harassed and submits he failed his probation due to performance issues.
Disability is defined in Section 2 of the Acts:
(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;
I am satisfied that the Complainant’s disability which is Crohn’s disease comes within the definition of a disability outlined above.
Section 6(1) of the Employment Equality Acts provide:
“discrimination shall be taken to occur where—
(a) a person is treated less favourably than another person is, has been or would
be treated in a comparable situation on any of the grounds specified in
subsection (2) (in this Act referred to as the ‘discriminatory grounds’)”
Section 6(2) provides:
“As between any 2 persons, the discriminatory grounds (and the descriptions of
those grounds for the purposes of this Act) are—
(g) that one is a person with a disability and the other either is not or is a person
with a different disability (in this Act referred to as “the disability ground”),
8.—(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.
(2) For the purposes of this Act, neither an employer nor a provider of agency work
shall be taken to discriminate against an agency worker unless (on one of the
discriminatory grounds) that agency worker is treated less favourably than another
agency worker is, has been or would be treated.
(5) Without prejudice to the generality of subsection (1), an employer shall be taken
to discriminate against an employee or prospective employee in relation to access to
employment if the employer discriminates against the employee or prospective
(a) in any arrangements the employer makes for the purpose of deciding to whom
employment should be offered,
(b) by specifying, in respect of one person or class of persons, entry requirements
for employment which are not specified in respect of other persons or
classes of persons, where the circumstances in which both such persons or
classes would be employed are not materially different,
14A.—(1) For the purposes of this Act, where—
(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually
harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is—
(i) employed at that place or by the same employer,
(ii) the victim’s employer, or
(b) without prejudice to the generality of paragraph (a)—
(i) such harassment has occurred, and
(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or
(II) it could reasonably be anticipated that he or she would be so treated,
the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.
(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable—
(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and
(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.
Section 14 A (7) provides:
(a)(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”
Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "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."
In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated in relation to Section 85 A as follows:
"Section 85A of the Act 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.”
The Labour Court in the case of The Southern Health Board v. Dr Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The LC stated that the Complainant must:
“.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.”
It requires the Complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that she was discriminated against on the disability ground. It is only when she has discharged this burden to the satisfaction of Adjudication Officer that the burden shifts to the Respondent to rebut the prima facie case raised.
Section 16 (1) of the Acts states:
“Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position or retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual ….
(b) is not (or as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking the duties attached to that position having regard to the conditions under which those duties are, or may be required to be, performed.”
Section 16(1) must be read in conjunction with Section 16(3) where a person with a disability is regarded as fully competent and fully capable of undertaking duties if ‘reasonable accommodation’ is the only difference between s(he) being able to do the job and not being able to do the job:
(3) (a) “For the purposes of this Act a person who has 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) The 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 or advance in employment, or
(iii) to undergo training, unless the measures would impose a disproportionate burden on the employer.
(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—
(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.”
4) In subsection (3)—
‘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”;
In relation to the practical requirements and obligations placed on employers in relation to reasonable accommodation the Labour Court decision in Humphreys v Westwood Fitness Club  E.l.R. 296 which was upheld by the Circuit Court stated that:. “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."
The Labour Court held in An Employer and A WorkerEDA 0413 that the reasonable accommodation test is an objective one:
“The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus, it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case.”
The complainant notified his manager of his medical condition on the 17th of January and asked for permission to work from home on Friday afternoons to avoid the heavy traffic on his commute home to Kildare. He said that his medical condition can flare up if his commute was delayed by heavy traffic and in particularly on Friday evening as the traffic is very heavy. The complainant met with the HR manager and advised her of his medical condition and he was referred to Occupational Health. He met with the OH nurse and completed a medical assessment form.
I am satisfied that the respondent knew and accepted that the complainant had a disability given the evidence and the correspondence between the parties. I note that the manager told the complainant that she would provide support and allow him to work from home on an ad hoc basis if and when his medical condition flared up, but that she could not commit to working from home on Friday afternoons. In response to a further request from the complainant to work from home on a Friday afternoon because of his medical condition, I note the manager stated, in refusing the request, that she had already given him flexibility in allowing him to work from Brazil and allowing him to work from 7.30am to 4pm rather than the usual working time of 9am to 5.30pm.
I note that the HR manager spoke to the OH nurse after she had seen the complainant and she was informed that the reasonable accommodation that the complainant was seeking was not necessary. Even though the OH nurse was not recommending the accommodation, I note from the evidence she told HR that the complainant had a complex medical condition and she needed to refer him to the OH doctor. The OH nurse asked the complainant for a consultant’s report before making an appointment with the OH. The complainant said that he requested the report from the hospital consultant but the first report he got was a generic report and the OH nurse requested that the report include the specific accommodation that he needed for his medical condition. On 20th February when he attended for an appointment he requested a report from the consultant but there was a delay by the hospital in sending the report and it also got lost in the post. I note from the consultant’s report that it was dictated on the 20th February and dated the 7th March, but the complainant did not receive it in the post which supports the complainant’s contention that the delay was outside his control. I am also satisfied from the correspondence that the complainant informed OH of the difficulties he had in getting the consultant’s report. The complainant said he collected the consultant’s report from the hospital on the 13th of March and an appointment was made with the OH doctor. However, the complainant was dismissed on the 14th March.
While the complainant’s consultant report was not available to the respondent until the date of the dismissal, the company has an OH doctor to whom the complainant could have been referred for a recommendation on whether reasonable accommodation of working from on a Friday afternoon was necessary. I note the complainant’s manager in an email to him said that she would support him and his medical condition by providing him with accommodation on an ad hoc basis when his medical condition flared up but that she could not allow him to work from on Friday afternoons. The complainant set out the reasons for his request to work from home in an email and in a further response dated the 22nd January the request was refused. The complainant was not seeking an ad hoc arrangement for when he had a flare up of his medical condition, he was seeking reasonable accommodation that is working from home on a Friday afternoon to prevent being delayed in traffic and thereby avoiding a flare up of his medical condition. I note that the consultant recommended working from home where possible and to avoid long commutes.
In the Westwood case cited above, the Labour Court said that the employer should make enquires to ensure they are in full possession of the facts in relation to the disability. I am satisfied that the respondent did not make sufficient enquires before refusing the complainant’s request to work from home on Friday afternoons. I note that the manager refused without making any enquires at all. HR did not get a written report from the OH nurse on the reasons for the refusal nor did they request that the complainant be immediately referred to the OH doctor for a report before making the decision to refuse the request to work from home on Friday afternoons. The complainant had already given permission for the OH doctor to contact his consultant, but he was not referred to the doctor. I find therefore that the Respondent breached the statutory duty to provide reasonable accommodation.
The complainant is claiming that his dismissal was discriminatory.
The complainant was dismissed at a meeting with HR on the 14th of March 2019. The respondent stated in the dismissal letter that he was dismissed because of concerns regarding his performance and results achieved, the missing of deadlines and failure to attend meetings, his approach to his working hours. I note their manager had a meeting with the complainant on the 7th of March 2019 to discuss the summary of the mid probation review which took place on the 5th of February 2019 and the complainant’s response. A number of issues were discussed including the complaint made about racial comments which had already been resolved, his health condition, his email signature which stated that his hours of work where 7 am to 3:30 pm and the need to provide a hospital appointment letter. I note that according to the notes that the meeting ended with both the complainant and his manager committing to finding solutions to work better together. I further note that there was no warning issued to the complainant at that meeting that if his performance or behaviour did not improve he could be dismissed.
I note that on the 19th of February the complainant‘s manager complimented him on a great results he had achieved in a particular pilot project. Also, on the 12th of March, in an email from a senior manager, the complainant and a work colleague were recognised for their work and they were put onto teams to work on particular projects.
I note that one of the reasons provided for the dismissal was the complainant‘s approach to his working hours as determined by the company.
It seems to me that the dismissal decision was taken after the complainant requested a change of the date for a one-to-one meeting with his manager. The complainant asked that the meeting be changed from the 12th of March because he needed to complete video training as a deadline to have it completed was approaching. The manager responded saying that she was only available on Thursday at 4 pm. The complainant declined this time because he said his shift finished at 4 pm stating it was for health reasons. Following this exchange of emails, the manager brought it to the attention of HR who contacted OH nurse to find out if she had provided advice of the complainant about his finishing hours. In response she said that she had given no occupational health advice to the complainant and she was still waiting for the consultant’s report. It is my opinion that the decision to dismiss was taken after that communication with 0H. I note that the complainant provided the consultant’s report to OH on the 14th of March and an appointment was made with the doctor for the 20th of March and there was no further contact by OH with HR before the decision was taken to dismiss. It is significant that the decision to dismiss was taken after the consultant’s report was submitted.
I note that the manager in an email dated the 22nd of January to the complainant, in response to the complainant’s request for reasonable accommodation and the disclosure of his medical condition to her, she stated she had given him flexible working hours and he was allowed to finish work at 4 pm. The complainant said that when he started with the company he understood there were flexible hours available and he asked if he could work 7am to 3.30 and this was refused, but his manager gave him permission to work from 7.30am to 4 p.m., therefore, the complainant already had reasonable accommodation as regards his finishing time. To dismiss the complainant for declining a meeting at 4 pm, because OH had not granted reasonable accommodation, in circumstances where the employer had already agreed a finishing time at 4 pm for work life balance in my opinion was not reasonable and amounts to a discriminatory dismissal. The complainant’s evidence was that he worked from 7:30 am to 4 pm in order to avoid the impact on his medical condition of any traffic delays in his commute to Kildare.
While there was no official recommendation from 0H to HR about reasonable accommodation, the respondent had granted him flexible working hours which amounted to reasonable accommodation. To set the meeting for 4 pm effectively removed the reasonable accommodation the complainant had availed off with the consent of the respondent.
The respondent’s dismissal letter said that the complainant was not transparent about his time away from work in relation to his medical appointments.
The manager stated that the complainant refused to provide her with a letter of appointment for his hospital appointments. She said that the complainant gave her insufficient notice of his medical appointments and some days he was out for more than a half day. She said it was a sick absence and, in her opinion, it needed to be recorded on the sick leave system.
The complainant said that he had to attend the hospital about every six weeks for an infusion which took about a half day. In November he verbally notified his manager about the appointment, in January he took a day’s leave, In February he notified his manager verbally of his appointment and she asked for a medical certificate. The complainant said he got a medical certificate for his appointment on the 21st February and also a notification about his March appointment, but the day mentioned for that appointment was Saturday which was incorrect. He said he uploaded the medical certificate to the vacation system and he had to await his next appointment before he could get a notification of his March appointment changed.
I note that the complainant emailed his manager on the 4th March informing her of his medical appointment on the 13th of March and in response she requested a copy of his hospital appointment letter which she had asked for in respect of the February appointment. In response the complainant told his manager that he had already sent a medical certificate to HR and he had resolved and clarified the matter with HR and went on to say that he was already working with HR and OH and that he would prefer to keep his medical condition private. I note from an email dated 12 March from HR to the complainant that HR had a medical certificate in respect of the February medical appointment and a notification of the March appointment. I note that in an exchange of messages between the complainant and the manager, that the manager knew that the complainant had uploaded a hospital appointment letter to the system. The manager is entitled to proof of medical appointments and she could have retrieved it from HR. It seems to me that there was a breakdown in communications between HR and the manager and the complainant was in no way responsible for this.
I am satisfied that the respondent had supporting documentation in relation to the complainant’s medical appointments which could have been shared with the manager if she had concerns about transparency in relation to taking time off to attend medical appointments. I am not convinced that the complainant was not transparent about his medical appointments.
For all of the above reasons, I am satisfied that the complainant has raised a prima facie case of discriminatory dismissal on the disability ground.
I note that the respondent did not seek a report from the OH doctor before making the decision to dismiss. I note that on the day of the dismissal that the complainant provided the respondent with a medical report which recommended for the complainant’s medical condition flexible working hours and be allowed work from home. In Humphreys v Westwood Fitness Club cited above, the Labour Court set out the requirements and obligations placed on an employer to comply with section 16 of the Act before making a decision to dismiss. The withdrawing of the reasonable accommodation provided in respect of his working hours and dismissing the complainant following his request to change the time of the meeting, raises an inference of discrimination on the disability ground. The respondent failed to ensure that they were in possession of all the medical facts which were available in OH before reaching a decision to dismiss.
Therefore, the respondent has failed to provide satisfactory evidence to discharge the burden of rebutting the prima facie case of discriminatory treatment on the disability ground raised by the complainant.
The complainant claimed that he was harassed on the disability ground contrary to section 14 of the EE Act. He said that his manager continuously sought to raise his health issues with him and spent considerable time at meetings discussing his health and she also requested that he take leave to attend his medical appointments. He was refused permission to work from home on a Friday afternoon and despite advising his manager that he needed to finish work at 4pm meetings were sought close to 4pm resulting in him being delayed in traffic.
The respondent denied that the complainant was harassed and was accommodated in relation to his hospital appointments. In relation to meetings at the end of his shift, the respondent stated that the complainant decided without prior approval that he would work certain hours because of his health issues. Notwithstanding this it was submitted that the complainant was accommodated when he requested a change of time for meetings.
For the complainant to establish that he was harassed on the disability ground he must establish that the conduct was unwanted and had “the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.
I am satisfied that the complainant has not produced any evidence of conduct by the respondent which could be considered as harassment in accordance with the above definition. I find that the complainant has failed to establish a prima facie case in relation to this aspect of his complaint.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I find that the respondent did not provide reasonable accommodation and dismissed the complainant on the disability ground contrary to the terms of the EE Acts 1998 as amended. I find that the complainant was not harassed pursuant to the terms of the Act.
Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination. Section 82(4) provides:
The maximum amount which may be ordered by the Director General
of the Workplace Relations Commission by way of compensation under subsection
(1)(c) or (1)(f) shall be—
(a) in any case where the Complainant was in receipt of remuneration at the date
of the reference of the case, or if it was earlier, the date of dismissal, an
amount equal to the greatest of—
(i) 104 times the amount of that remuneration, determined on a weekly basis,
(ii) 104 times the amount, determined on a weekly basis, which the
Complainant would have received at that date but for the act of discrimination
or victimisation concerned, or
(b) in any other case, €13,000.
The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. In deciding the amount of compensation, I note that the complainant left another job to take up this position and found himself out of work after about 4 months. In accordance with Section 82 of the Act, I order the respondent pay the complainant €30,000 (which is the 6 months pay based on his annual salary of €60,000) in compensation for the distress caused to him and the effects of the discriminatory treatment and dismissal.
The total award is for the infringement of the complainant’s statutory rights and, therefore, is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).
Dated: 30th March 2021
Workplace Relations Commission Adjudication Officer: Marian Duffy
Employment Equality Act 1998 – 2015, Disability, Reasonable Accommodation, Discriminatory Dismissal, Harassment.