Complainant

Respondent

Parties

Leticia  Villaca

Keeling’s Logistics Solutions Unlimited Company

Representatives

Sarah Dowling IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00070197-003

18/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00070197-004

18/03/2025

The complainant was an agency worker who was placed with the respondent as a Warehouse Operative on August 26th, 2024.  The complaints arise from events on October 23rd, some two months later.

She made the complaints to the WRC on March 23rd, 2025.

The complainant gave her evidence on affirmation.

In relation to her complaint of gender discrimination she made two allegations.

The first was that she had been told by a supervisor to work ‘like a man’ and that this (or something similar) happened every week.

The second complaint related to her being asked to lift excessive weights by that same person. She could identify him only by a first name (Patsy, she thought) but could not give any detail on when the incidents occurred.

She described her disability as having been related to a burn injury and says that the nub of her complaint relates to how she was treated after she went home on October 23rd, 2024, the last day of her employment with the respondent.

In response to a question from the Adjudicator, she could not identify a specific action which she would describe as an act of less favourable treatment.

The  complainant alleges that she was discriminated against on the grounds of a disability, her gender, that she was treated unlawfully by the Respondent in regard to, her conditions of employment, training, harassment, and dismissal. The complainant has states the last date of discrimination as 23 October 2024.

Her  claim of discrimination necessitates the discharge of the burden of proof that there is a prima facie case to answer as prescribed by section 85A of the Employment Equality Acts, 1998-2015. It is the respondent’s position that she has failed to do so, as she has not defined any less favourable treatment nor any causal link between any alleged mistreatment, and her gender. The respondent requests that as a result, these claims fail.

Preliminary Matters

Ongoing current High Court Proceedings in conjunction with this claim.

As of July 14th, 2025, the complainant has been given an opportunity to join the Respondent, in this instant case, to current on-going High Court claims and we have been joined in a discovery motion. These are ongoing High Court proceedings with one of her former employers. As of the 14 July 2025, The Respondent in this instant case has been joined in the motion of discovery.

The Respondent relies on “Morgan v Irish Horse Welfare Trust [2014] ELR 41” where the Tribunal adjourned the Unfair Dismissal claim finding that both cases were inextricably interlinked with bullying being at the centre of both actions stating that “[T]the Tribunal does not consider that there are “special circumstances” as referred to in the Cunningham case that would permit the High Court action and the Unfair Dismissals WRC action to proceed simultaneously.

The current on-going high court claim along with the WRC claim ADJ 00057718 relies on the same set of facts and therefore may prejudice the Respondent in defending any further claims in the High Court. Details of this Motion for Discovery can be provided at the hearing upon request from the Adjudicator.

Prima Facie Case of Discrimination and burden of proof

The complainant is required to present, facts from which it can be inferred that she was treated less favourably, on the basis of the discriminatory ground cited.

Section 85A of the Act provides that: “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 requirement has been explored in a number of cases including the case of Melbury Developments Limited v Arturs Valpeters (EDA0917)

The respondent also relies on  ICON Clinical Research and Tsourova, EDA071, SouthernHealthBoardvMitchell,[2001]ELR 201and  Margetts v Graham Anthony & Company Limited, EDA038,

All these cases require that the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“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 complainant has alleged discrimination on the grounds of disability but has not produced any evidence to support this allegation. The Act under s2 (1) defined disability as follows:

“In this Act, unless the context otherwise requires — ... “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,

(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)   acondition,illnessordiseasewhichaffectsaperson’sthoughtprocesses,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;”

She has not produced any evidence that such discrimination occurred and has failed to name a comparator against which such alleged unequal treatment may be judged. Furthermore, she has not set out how this alleged unequal treatment influenced the behaviour and decision making of the Respondent such that it resulted in the complainant being the victim of discrimination.

Only when the complainant has discharged this burden to the satisfaction of an Adjudication Officer does that the burden shifts to the Respondent to rebut the inference of discrimination raised. The Respondent submits that the complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

Discrimination on the grounds of disability and ‘reasonable accommodation’

The complainant is alleging that she has been discriminated against on the grounds of disability and that she was not provided with a ‘reasonable accommodation’ but has failed to set out the primary facts on which they intend to rely in support of their contention that they suffered from a disability within the meaning of the Employment Equality Acts. Furthermore, she has failed to select a comparator to demonstrate how she believes she has been treated less favourably under the grounds cited.

The respondent is not aware that the complainant suffers from a disability within the meaning of the Employment Equality Acts 1977-2015. At no time did she say that she suffered from a disability. In contrast, she acknowledged that the Respondent was not aware of any known disability.

The onus of proof is on the complainant regarding the points outlined above and it is not simply sufficient to maintain that the issues referred to in the WRC complaint form meets the standard of a disability as defined by the legislation. Nor is it correct to simply assert this and then assume that the onus of proof shifts to the Respondent to demonstrate that the complainant does not have a disability within the meaning of the Act.

The requirements under the Act require the complainant to demonstrate that she is suffering from a disability within the meaning of the Act. The Respondent submits that the complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

The Employment Equality Act, 1998, defines the term ‘disability’, and what is meant by the term ‘discrimination’. The Respondent submits that there is nothing in the facts of this case that offers any evidence, or establishes any basis, for the presumption of discrimination. Accordingly, the Respondent submits that this case does not reach a point where any burden of proof lies with the Respondent. That being so, this claim must fail.

Complaints not particularised/No causal link

The Respondent submits that the complaints are either misconceived and/or not particularised enough to allow them to respond fairly. Given the nature of the complaint under the Employment Equality Acts, the burden of proof rests on the complainant to set out their evidence in this regard. In line with the Commission’s procedures into the investigation and adjudication of employment and equality complaints, the complainant is required to supply a written statement setting out the details of the complaint.

The statement in the claim form lacks sufficient detail, as required under the WRC Procedures, and no direct examples of the discrimination that the complainant alleges are provided. Standard items such as names, context, dates, locations and the link to the alleged discrimination have not been provided. This basic factual information is a minimum requirement in order for the complainant to substantiate their allegations.

A fair procedure requires that the complainant submits all the substantive matters upon which they intend to rely on in advancing their claim of alleged discrimination, which would in turn permit the Respondent to investigate and to respond to the allegations being made prior to the date of hearing. This is the procedure set down by the WRC itself. As it stands no adequate opportunity has been afforded to the Respondent to prepare a response and with the case scheduled, the Respondent is denied the right to natural justice in the hearing of this complaint.

BackgroundtotheRespondent

The Respondent manages distribution operations and provides supply-chain services for retail clients in Ireland. They employ over 400 people delivering over one million cases of product each week to more than 140 stores daily across Ireland.

The complainant began with the Respondent on 26 August 2024, through an employment agency as a Warehouse Operative. The complainant was hired as on a temporary basis through the agency to support the Respondents busy period. She worked an average of 35/45 hours per week and was paid €14.86 per hour for hours worked.

The complaint

The complainant alleges a breach of the Employment Equality Acts, 1998 – 2015, on the ground of disability. She also alleges that she was subjected to unlawful treatment in respect of her conditions of employment, training, dismissal for discriminatory grounds and harassment.

She was given training on the respondent’s policies and procedures and successfully completed various training: again without reference to any disability.

On 23 October 2024, she approached Mr. Paul Fitzgearld, Warehouse Manager and explained that she was not feeling well. He gently probed her to gain a further understanding of the situation. She was then brought to the First Aid room where she met Mr. Danny Ormsby, the Respondents First Aider. Once she was attended to, Mr. Fitzgerald felt should leave to allow the complainant some privacy.

Mr. Ormsby asked her did she sustain an injury while on the operational floor and she told him she had not but was feeling unwell and gave significant detail to Mr. Ormsby. Mr. Ormsby attempted to refer the complainant to attend a hospital, but the complainant refused.

Mr. Ormsby called the site Health and Safety Officer for assistance, Mr Finn who again asked if she would like to attend the hospital or her GP. She refused. Both Mr. O’Scanaill and Mr. Ormsby made one last attempt to refer the complainant to the hospital given what she had explained, but again this was refused. She said that she would get a taxi home, which Mr. Ormsby arranged.

Following this, Ms. Lauren O’Brien, Head of People, was attending a meeting with Ms. Emma Whelan, Operations Support Manager on same day. Ms. O’Brien briefly stepped out of the meeting and met the complainant in the women’s facilities. Ms O’Brien stated that she was visibly upset so she offered her office to her with the aim of calming her down.

Ms. O’Brien informed Mr. Ormsby and Ms. Whelan of her intention to take a few minutes to help the complainant and understand what was going on. When Ms. O’Brien spoke with the complainant, she only said that she was feeling unwell and provided further detail. Ms. O’Brien encouraged the complainant to attend the general hospital and further explained that medical professionals would be better placed to assess her concerns. The complainant again declined.

During the conversation above, Ms. O’Brien asked if the complainant had a next of kin that she would like contacted. The complainant initially stated that there was no one to contact but then referred to a friend but he was on a flight from Brazil so   could not take the call.

The taxi then arrived to take her home as requested and she gathered her belongings and was assisted to the taxi by Ms. O’Brien and Ms. Whelan. Ms. O’Brien explained that she would be paid for the full day and that someone would be  in  contact with  her  the next  day  to  see  how  she  is  doing.

Following this, on same day, Ms. Whelan phoned Mr. Dragan Pupavac, the Agency Representative, to inform him of what had happened. Ms. Whelan asked Mr. Pupavac to conduct a welfare check with the complainant given the circumstances and the genuine concern that the Respondent had for the complainants well-being. Ms. Whelan further expressed to Mr. Pupavac that the complainant should not be rostered for shifts with the Respondent while she is unwell and offered full support should a need arise. Ms. Whelan closed the conversation with Mr. Pupavac, asking him to keep her informed of any developments or needs that may arise.

Approximately one week later, Ms. Whelan followed up with Mr. Pupavac to see how the complainant was. Mr. Pupavac explained that he had made several attempts to contact the complainant, and he eventually succeeded. Mr Pupavac stated that the complainant had not yet received medical treatment as she did not believe that it would be effective. Ms Whelan reiterated the importance of staying updated on the complainants situation and further requested that she be kept updated of any further progress. Ms. Whelan received  no further updates from  Mr. Pupavac after this.

On the March 27th,  2025, the respondent was notified of the WRC complaints

Ms. O’Brien spoke with Mr. Dave Boylan, Service Delivery Manager and Director of the employment agency on a number of occasions to which he confirmed that the complainant was still active on their site, however, was on long term absence.

Shortly after, Ms. O’Brien emailed Mr Boylan on June 9th, 2025, further querying the complainants assignment and fitness to return. Ms O’Brien stated in the email correspondence that the Respondent would be happy to see the complainant return to employment with the Respondent, contingent on the relevant, required medical certification. This email still remains unanswered.

Concerning the disability grounds as outlined within the WRC Complaint form on which the complainant may seek to base her case, the respondent points to the Labour Court case of a Government Department v a Worker (EDA094). In that case, the Court stated that:

“...the only issue which the Court must decide is whether the condition from which the complainant suffered is a disability within the statutory meaning ascribed to that term. That is a mixed question of law and fact which turns on the true construction of paragraph (e) of the definition of disability contained at s.2 of the Act and the application of that definition to the facts as admitted or found by the Court.”

In other words, the Court will attempt to interpret the ‘true construction’ of disability and seek to apply that to the facts of a particular case.

The True Construction of Disability

Regarding the concept or true construction of disability, the ECJ, in the case of HK Danmark acting on behalf of Ring v Dansk almennyttigt Boligsdelskab (C-335/11)held that:

“The concept of ‘disability’ in the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one ….On the other hand, an illness not entailing such a limitation is not covered by the concept of ‘discrimination’ within the meaning of Directive 2000/78”.

The above Ruling was made in circumstances where the ECJ was called on to provide guidance on how the concept of disability was to be differentiated from what is called sickness. The ECJ Ruling highlighted, three differentiating aspects of disability namely, that: (a) it entails a condition caused by an illness medically diagnosed as curable or incurable, (b) results in mental or psychological impairment, and (c) may hinder the full and effective participation of the person in professional life.

Similarly, the Labour Court, in the earlier referenced case EDA094, when considering what category of sickness or illness is included under the definition of s.2 (e) noted that:

“It is noteworthy that the definition is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is to be ascribed thereto. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded.”

It is significant that the Court interprets the Act as referring to a ‘particular condition, illness or disease’, from which it may reasonably be inferred that the Court needs medical specificity as to a particular condition’s diagnosis and behavioural symptoms. In so stating, the Court has gently separated common sicknesses or illness from a disability for the purposes of the Act. The Court also interprets the Act in line with the ECJ Ruling notwithstanding that disability has a broader definition under the Act which preceded the ECJ Ruling.

The Court elaborated on this difference between general ‘illnesses’ and disabilities in stating:

“... the Respondent argued that a strictly literal interpretation of the statutory definition would produce the result that mere unhappiness or ordinary stress or disappointment which effects a person’s emotions would have to be classified as a disability. This, it was submitted, would be an absurd result. There is considerable cogency in that argument.  no statute can be construed so as to produce an absurd

result or one that is repugnant to common sense. That common-law rule of construction has now been given statutory effect by s.5(1) of the Interpretation Act 2005. It would appear to the Court that if the statute were to be construed so as to blur the distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other, it could be fairly described as an absurdity.”

Case law in the UK sheds more light around the types of condition that constitutes disability. In Herry v Dudley Metropolitan Council and Governing Body of Hillcrest School UKEAT/0101/16 LA), the UKEAT quoted as follows from the landmark Ruling in J v DLA Piper UK [2010] ICR 1052 which they described ‘as having stood the test of time and proved of great assistance to Employment Tribunals’ :

“42   The first state of affairs is a mental illness - or, if you prefer, a mental condition

- which is conveniently referred to as "clinical depression" and is unquestionably an impairment within the meaning of the Act. The second is not characterised as a mental condition at all but simply as a reaction to adverse circumstances (such as problems at work) or -if the jargon may be forgiven - "adverse life events". We dare say that the value or validity of that distinction could be questioned at the level of deep theory; and even if it is accepted in principle the borderline between the two states of affairs is bound often to be very blurred in practice. But we are equally clear that it reflects a distinction which is routinely made by cliniciansand which should in principle be recognised for the purposes of the Act. We accept that it may be a difficult distinction to apply in a particular case: and the difficulty can be exacerbated by the looseness with which some medical professionals, and most lay people, use such terms as "depression" ("clinical" or otherwise), "anxiety" and "stress". Fortunately, however, we would not expect those difficulties often to cause a real problem in the context of a claim under the Act".

The Court in a recent determination (EDA 1634) also addressed the issue of malfunction or impairment as it relates to disability. The Court concluded as follows:

“Taking the ordinary and natural meaning of the term malfunction, (connoting a failure to function in a normal manner), the condition from which the complainant sufferedin consequences of her accident amounted to a malfunction of parts of her body. It thus constituted a disability within the meaning of the Act.”

Obviously, common sense dictates that the very essence of a disability connotes some limitation of the individual’s ability or impairment in the person that somehow inhibits their capacity to function fully and, therefore, impacts on day-to-day activities. The above referenced UK Appeals Tribunals addressed the issue of actual mental impairment in the context of an ‘entrenched position’ of those claiming a disability as follows:

“56. Although reactions to adverse circumstances are indeed not normally long-lived, experience shows that there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on normal day-to-day activities. A doctor may be more likely to refer to the presentation of such an entrenched position as stress than as anxiety or depression. An Employment Tribunal is not bound to find that there is a mental impairment in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise (if these or similar findings are made by an Employment Tribunal) are not of themselves mental impairments: they may simply reflect a person's character or personality.”

It is clear from a brief examination of case law on what constitutes a disability that the 3 different jurisdictions (i.e. Ireland, UK, EU) with different legislation applying, all differentiated between what is termed disability and what is termed common sicknesses, ordinary stress or disappointment and reactions to adverse circumstances or life events. It is also evident from case law that disability connotes some form of impairment or malfunction – ‘physically’ or ‘mentally’. Regarding, conditions or illnesses that constitute within the meaning of the Act, obviously, it helps tribunals and courts to make this distinction when there is a degree of precision and certainty where medical evidence is concerned. The Labour Court, in the context of disability, has distinguished between what it termed ‘emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness’.

With this in mind note the World Health Organization’s (WHO) publication: the Diagnostic and Management Guidelines for Mental Disorders in Primary Care (ICD-10 Chapter V Primary Care Version). This publication (ICD 10 Chapter V) is used quite extensively by GPs internationally.

The true construction of disability within the meaning of s.2 (e) of the Act constitutes a named clinically diagnosed condition as opposed to ‘stress’ which is self-evidently part of the human experience of everyday life – both good and bad. Further, a disability must result in some degree of malfunction or impairment, and this must result in hindering the individual from full participation in professional life.

The grounds advanced by the complainant in this case do not constitute a “disability” within the meaning of the Act and she did not have a named disability nor was the employer on notice of any such disability at anytime during her assignment; hence they had no reasonable cause to have her assessed by their occupational health physician on a disability ground.

In relation to Section 16 of the Act, the respondent notes that the Act states that: “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”. The Respondent submits that this legal obligation is wholly unrelated to the circumstances of the complainant for the above-mentioned reasons.

The complainant has failed to establish a prima facie case of discrimination in that she has not provided any evidence to demonstrate that she was treated less favourably than any other employee on the grounds specified. Furthermore, the complainant has failed to provide details of any comparator on whom she wishes to rely.

Further to this, the complainant says that “the complainant wishes to clarify that the Respondent was unaware of the length and severity of her condition. This was not due to a lack of available information but rather because the Respondent failed to follow fair procedures during her dismissal and never provided her with an opportunity to explain her circumstances”.

The Respondent rejects the latter part of this statement and repeats the point above where the complainant was explicitly asked if she sustained an injury to which she responded ‘no’.

Additionally, the Respondent rejects the allegation of discriminatory dismissal. The complainant was, at no time dismissed nor was the agency instructed to do so. The Respondent tried to act honestly towards her at all times by informing the agency of the situation at hand. The respondent cannot bear the burden for a discriminatory dismissal if there was none.

The Respondent submits the following Labour Court case “Tesco Ireland and Victor Ogiem Udia” where the court found that the Respondent was not the correct respondent to address the dismissal as the complainant held a valid contract of employment with another named entity and remained an employee of  this  entity  after  the  fact. UDD2519)

The complainant says that the termination of her employment constituted discriminatory treatment on the ground of disability. She was not dismissed but went home due to health concerns.

Conditions of Employment:

None of the elements referred to in the Act with respect to offering the same terms of employment, working conditions or treatment in relation to overtime, shift work, short time and so on are disclosed within the allegations. So, she has not substantiated nor specified her claim of discrimination in relation to conditions of employment on the gender ground and it should fail.

The complainant has submitted no substantiating facts upon which it could be established that she has been discriminated or discriminatorily dismissed by the Respondent.

Witness Evidence

Mr Danny Ormsby gave evidence on affirmation.

The witness is the Warehouse Manager but is also an in-house First Aider.

He Saud that he met the complainant on the day of the incident and asked her whether she had incurred an injury. She told him that she had not and said that she was unwell and was experiencing headaches.

He specifically asked her whether she had fallen and hurt her head and again she told him that she had not.

She did not mention any burn injury and he suggested to her on several occasions that she should go to see her GP or to hospital and she declined to do either.

Eventually she agreed to go home in a taxi

Ms Lauren O’Brien gave evidence on affirmation.

Ms O’Brien is ‘Head of People’ at the respondent. On the day in question she had met Mr Ormsby who told her of the complainant being in distress. She then noticed the complainant sitting on a bench in a public area so she invited her into her own (the witness’s) office so that she would have some privacy.

The complainant told the witness that she was suffering from headaches but declined an offer to go to hospital or to a GP.

The witness told her as she was leaving that she would be paid for the day that her agency would be advised.

She repeated that she was only told by the complainant of headaches; there was no reference to burns.

The witness made no contact with the agency herself.

Evidence of Emma Whelan on affirmation.

Ms Whelan was present with Ms O’Brien (previous witness) when they approached the complainant on October 23rd. She did not hear the complainant make any reference to a burn, or any injury and offered to accompany to wither a hospital of her GP but the complainant declined the offer.

The witness said that she deals with the agency through which the complainant was engaged, and as she was aware that its representative was onsite that day, she located him and told him about the incident. She also told him that  certification of her fitness to return to work would be required.

At no stage was he told anything in relation to the termination of the complainant ‘s employment.

She also noted that she had never been told of any disability and noted that the complainant had never raised any grievance.

She spoke with the agency representative about a week later who told her that he had heard nothing further.

In relation to the methodology by which workers are recruited she stated that the agency is told only of the number of shifts it needs to cover, and the respondent does not have any direct role over specific appointments.

It was her understanding that the complainant remained on the agency’s books and that absence management is a matter exclusively for the agency.

The complainant was invited to put any relevant matters to each witness in turn, but she declined.

I note the preliminary point raised by the respondent regarding the proceedings under way in the High Court.

In view of my Findings below I do  not consider it necessary to adjourn these proceedings.

The key facts in this case are not complicated and can be viewed in the course of a very small period on October 23rd, 2024.

The complainant made somewhat contradictory submissions into the alleged breaches of the Act, referring vaguely to some interactions which took place before October 23rd and then, also stating that her main complaints related to how she was treated after that date.

In any event she could not even identify the person who allegedly made the pre-October 23rd  complaints, or the dates on which they occurred which undermines their value as grounds for a complaint. The respondent could not either recognise a person resembling that described by her. This appeared to be the complaint on the gender ground.

Unfortunately for her, the position does not greatly improve when looking at the balance of her complaint.

It is abundantly clear from the submissions and evidence, that she presented on October 23rd as having some general malaise and not an industrial injury. She was again vague and unconvincing about how the alleged burn injury came about but I am in no doubt that it was not mentioned at the time to any of the three witnesses who gave evidence for the respondent.

Her failure to do so on the day raises a very serious doubt over the credibility of her assertion on this point.

Because of its significance, the respondent read in full that section of its submission on the definition of ‘disability’ and it is replicated above.

I accept the respondent’s submissions on this point and find that the complainant did not have a disability as defined in the statute and case law.

Even if she did, she has failed to identify any act or omission which could remotely give rise to an act of less favourable treatment which followed it.

Indeed, yet another formidable obstacle in the complainant’s path is whether the respondent in this case is even the correct respondent.

Ms Whelan’s evidence was important in this regard. She outlined the relative responsibilities of the agency and the respondent in relation to absence management. Essentially, when the complainant went sick, the respondent ceased to have any further responsibility for the situation.

In fairness to the complainant, she was allegedly told by the agency that the respondent had said it did not want her to return to their employment, but no evidence beyond an email was offered on this and the respondent denies it did so.

Again, even if it did so, the complainant remained in a relationship with the agency but as far as could be established she made no further contact with it either.

Whatever the truth of this may be, it has little bearing on the current complaints insofar as they concern the respondent.

The complainant has failed utterly to adduce any evidence from which a prima facie breach of the Act may be inferred on either the gender or disability ground. Indeed, she has adduced no evidence at all that comes remotely close to the standard necessary to ground a complaint under the Act.

It is without any merit and is not upheld.

For the reasons set out above Complaints CA-00070197—003 and 004 are not upheld.

Employment Equality