Complainant

Respondent

Anonymised Parties

An IT Employee

A Food Industry Company 

Representatives

Self-Represented

Sarah Dowling IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00067327-001

12/11/2024

The Complainant commenced employment in 2021 as an IT Support Specialist at the Respondent’s facility. Her first line manager left the company, and from April 2022 she reported to the IT Site Manager, referred to in this decision as Mr D.

The complaint was made under the Employment Equality Acts, alleging discrimination on the grounds of gender and disability, a failure to provide reasonable accommodation for disability, harassment, victimisation and less favourable conditions of employment. The Complainant relied on three conditions as constituting disabilities for the purpose of the Acts: endometriosis, asthma, and depression. She claimed that her manager was dismissive of her health issues, refused to facilitate home working when she was unwell, treated her unfairly and with hostility, and made a remark which she found deeply offensive. She said her grievance about his behaviour was mishandled, that the company failed to implement medical advice, and that her working environment became intolerable.

The Respondent denied the allegations entirely, asserting that all employment procedures were applied properly, that the Complainant’s conditions were not disclosed until late 2023 or early 2024, and that the occupational health doctor twice certified her fit for work without restrictions. The Respondent said the duties of her on-site IT role required physical presence in the factory, that the manager’s conduct was always appropriate, and that the Complainant had failed to establish a prima facie case of discrimination as required by section 85A of the Acts.

At the hearing, the Complainant described her employment history in detail. She said her first nine months in the company were entirely positive, but that the atmosphere changed once Mr D became her manager. She said he “persistently found fault,” “spoke to me in a condescending and intimidating way,” and during one meeting “screamed at me for ten minutes straight” until she left the room in tears. She said she went to HR afterwards “crying and shaking.”

She stated that she suffers from endometriosis, a painful gynaecological condition causing fatigue, abdominal swelling, and nausea. During flare-ups she asked to work from home for a few hours or days, but said her manager refused her “point-blank,” even though he worked from home each Friday. She said she explained to him that she was in pain, to which he replied, “It’s not my problem that you have something like that.” She regarded this as discriminatory because endometriosis is a female-specific condition.

She added that she has asthma, keeping an inhaler on her desk, and that she once suffered an asthma attack in the staff bathrooms which her manager ignored. She said she had long-standing depression that had been stable for several years but deteriorated under his management, leaving her anxious, tearful, and unable to sleep.

The Complainant went on certified sick leave in November 2023, initially for “health issues” and later for “stress”. She said her doctor told her that workplace stress had aggravated her condition. She raised a formal grievance complaining of bullying and intimidation by Mr D. She was “appalled,” she said, when HR scheduled welfare calls with Mr D on the line, despite her requests that another manager take part instead. “I tried to repair the communication breakdown but was punished for being compliant,” she said, “forced into meetings with the person who made me unwell.” She wanted mediation but was told it would not be arranged.

She attended two occupational-health assessments. She said that the doctor told her verbally that she should have a different manager, but she acknowledged that this recommendation was not recorded in the written reports. She returned to work on a phased basis but said her laptop did not work and that Mr D’s continued presence in meetings made her return “hostile and unsafe.”

In cross-examination she accepted that none of her medical certificates mentioned endometriosis, asthma, or depression, preferring instead to “health issues” or “stress.” She accepted that she did not disclose depression when she was hired and that she preferred not to name endometriosis in the open office. She acknowledged that she was offered health insurance, income protection, and the Employee Assistance Programme, and that both occupational-health reports stated she was fit for work and that her medical conditions had not prevented her from attending work.

In her closing statement Ms A said she had been the victim of sustained bullying that destroyed her confidence and health; that the company ignored its own medical advice; and that she ultimately felt forced to resign. She sought an apology and compensation for distress.

Mr D, the line manager, said he became her manager in April 2022 and soon identified recurring problems that the Complainant had with incomplete work, missing files, and slow responses. He held monthly one-to-one meetings and prepared step-by-step illustrated guides to help her. He said the Complainant first mentioned endometriosis in September 2023 when she asked about absence triggers; he advised her to speak with HR. He denied knowing anything about asthma or depression before that. He denied ever saying “It’s not my problem that you have something like that” and denied shouting at her. “She became upset during a one-to-one,” he said, “so I told her to take the remaining time to herself, and I left the room.”

He explained that her IT support role required her to be physically present on site to maintain production systems, whereas his own managerial duties sometimes involved off-site reporting, which was why he occasionally worked from home.

Mr J, Head of Business Solutions, investigated her grievance. It concerned an alleged shouting incident. Neither party named witnesses. He found “contradictory accounts” and therefore an “inconclusive outcome,” recommending mediation. He said the grievance did not mention gender or disability.

Ms R, the Global Talent Manager, managed the appeal. No new evidence was submitted. Two HR staff said they saw the Complainant upset after a meeting but had not witnessed any altercation. The appeal upheld the original outcome and again recommended mediation.

Ms T, HR & Change Manager, became involved after the Complainant received a below-expectations performance rating. She advised that the process remain informal and that coaching be offered. When improvement was limited, a formal meeting was arranged but cancelled due to sickness absence. She said she conducted welfare calls to ensure medical certificates were received and offered support through the Employee Assistance Programme, private medical insurance, and income protection. When the Complainant later mentioned difficulty accessing a gynaecologist, Ms T offered to re-enrol her in the company’s private health plan outside the usual window to help her access treatment. She said this was the first time Ms A had mentioned endometriosis to her and that no specific accommodation was requested.

Ms C, HR Business Partner, first engaged with Ms A in September 2023 when she enquired about absence triggers and mentioned endometriosis and asthma. In line with policy, Ms C referred her to occupational health. The report stated that her medical conditions “had not prevented her from attending work or incapacitated her performance” and declared her fit for work. A later report in 2024 said she remained fit for work, recommending only that the company and employee continue engagement. Neither report recommended any change of manager or remote work. Ms C oversaw the phased return and said meetings were “normal, structured and professional.”

In closing, the Respondent’s representative submitted that the Complainant had not established a prima facie case under section 85A. Her evidence consisted of subjective perceptions without corroboration. No witness, document, or comparator linked any alleged conduct to gender or disability. The company’s actions—performance management, grievance and appeal, welfare checks, and occupational-health referrals—were all consistent with good practice and could not be interpreted as discriminatory. The Respondent’s representative cited Southern Health Board v Mitchell [2001] ELR 201, and  Melbury Developments v Valpeters [2010] 21 ELR 64, in its argument that the Complainant did not

The Applicable Law:

The Complainant in this case alleged discrimination on the grounds of disability and gender. There were a number of dimensions to her claims which included harassment, victimisation, lack of reasonable accommodation for her disability and discrimination regarding her general terms of employment. I set out below the relevant sections of the Employment Equality Acts 1998-2015 (“the Acts”) in its particular parts:

6.Discrimination for the purposes of this Act

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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”) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),…

…(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”),

Section 2 of the Acts defines disability as follows:

“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) 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

Reasonable accommodation on the grounds of disability is provided for under 16 (3) of the EEA where it states:

(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.

31. The term ‘appropriate measures’ is then defined in section 16(4) as follows:

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;

14A.Harassment and Sexual Harassment

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

(iii) a client, customer or other business contact of the victim's employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or

(b) without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and

(ii) either—

(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

(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim's employment and, if and so far as any such treatment has occurred, to reverse its effects.

(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.

(4) The reference in subsection (1)(a)(iii) to a client, customer or other business contact of the victim's employer includes a reference to any other person with whom the employer might reasonably expect the victim to come into contact in the workplace or otherwise in the course of his or her employment.

(5) In this section “employee” includes an individual who is—

(a) seeking or using any service provided by an employment agency, and

(b) participating in any course or facility referred to in paragraphs (a) to (c) of section 12(1),

and accordingly any reference to the individual's employer includes a reference to the employment agency providing the service or, as the case may be, the person offering or providing the course or facility.

(6) Where subsection (5) applies in relation to a victim, subsection (1) shall have effect as if for “in relation to the victim's conditions of employment” there were substituted “contrary to section 11”, or, as the case may be, section 12.

(7) (a)

In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

(b) 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.

(c) 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 74(2) defines victimisation: -

For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act, …

Discrimination in Specific Areas

8.Discrimination by employers etc.

(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…

The burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground cited. Section 85A of the Act states as follows:

(1) 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the [Director General] under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant 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. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”  

 When considering the primary facts adduced by the Complainant I must take into consideration any contrary evidence of the Respondent, when determining whether the burden of proof should shift. In the Labour Court case of Dyflin Publications Limited v Spasic EDA0823, it was stated that: -

“….the Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant.”

The Respondent’s witnesses—D, J, R, T and C—gave consistent accounts that were borne out by contemporaneous records (performance notes, grievance and appeal documents, welfare call notes, and two occupational-health reports). Against that, the Complainant’s case relied principally on her subjective perception of events, uncorroborated allegations about tone and remarks, and medical certificates that did not identify the disabilities she now relies upon. I treat each dimension of her complaint under the Acts in turn.

Harassment.

Harassment under section 14A above is defined as unwanted conduct related to a relevant protected ground that has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment. The Complainant says D “screamed” at her during a meeting and, on a separate occasion when she referred to endometriosis, said: “It’s not my problem that you have something like that.” D denies both. There is no contemporaneous note, email, complaint or witness to either event; significantly, the alleged remark was not recorded in her grievance at the time. The only third-party accounts (two HR colleagues interviewed on appeal, as described by R) were that they saw her upset after a meeting but had not witnessed any altercation. Even accepting that a manager raising performance concerns can be experienced as upsetting, the statutory test requires that the conduct be related to a protected ground. Significantly in this case the Complainant submitted a complaint/grievance of what she termed was bullying and harassment which included the incident she now alleges was harassment under the Acts. I note that the complaint was not upheld after initial investigation and appeal, but more importantly, there was uncontested evidence, both documentary and oral, showing that the internal complaint made no reference to disability or gender. The Complainant has not established, beyond assertion, that any conduct was related to gender or disability, still less that it crossed the statutory threshold. Moreover, the Respondent relied on a suite of policies, conducted an investigation and appeal, and offered mediation. Those steps are relevant to the statutory defence in section 14A (2) (reasonably practicable steps to prevent harassment). On the evidence before me, no prima facie case of harassment is made out on either gender or disability grounds.

Victimisation.

Victimisation within the meaning of the Acts requires credible evidence that a detriment was imposed because the employee engaged in a protected act (for example, complaining of discrimination or otherwise asserting rights under the Acts). The Complainant’s grievance, investigated by J and appealed to R, did not allege discrimination on any protected ground; it concerned alleged shouting in a one-to-one meeting. J found the Complainant’s evidence to inconclusive and recommended mediation; R upheld that outcome, again recommending mediation. The Complainant says that welfare calls and return-to-work meetings, including D, constituted penalisation after her grievance. I do not accept that. The unchallenged evidence from C and T is that, once the grievance and appeal concluded, D remained the line manager responsible for oversight of duties and therefore had to be involved in routine welfare and return coordination. There is no evidence of any adverse change in pay, status, warning, sanction, rostering or allocation of work linked to any protected act. In short, there is no causal link between a protected act under the Equality Acts and any detriment. Critically, whilst in the employ of the Respondent the Complainant did not raise any gender or disability issues in any complaint or correspondence and it was only in the subsequent complaint to the Workplace Relations Commission (WRC) did the issue of discrimination arise. According to the Labour Court in Melbury Developments v Valpeters [2010] 21 ELR 64 subjective belief of unfairness is insufficient to raise the requisite inference. The victimisation complaint therefore fails.

Reasonable Accommodation.

Under section 16(3) an employer must respond appropriately to enable a person with a disability to access and perform work, provided such measures do not impose a disproportionate burden. The duty is triggered where the employer is, or ought reasonably to be, on notice of the disability. The consistent evidence from D, T and C—supported by the exhibited  Occupational Health (OH)  records—is that endometriosis was first disclosed to HR in September 2023 (and discussed more openly in January 2024), and that asthma and depression were not identified to the employer earlier; the medical certificates furnished during absence cited “health issues” and later “stress” without diagnosis. The Complainant says she told D much earlier and that he responded dismissively. In the absence of corroboration, and in circumstances where contemporaneous processes (her grievance and subsequent OH referrals) did not record such an early disclosure, I prefer the Respondent’s timeline.

As to measures, the only concrete adjustment sought was occasional homeworking during endometriosis flare-ups. The Respondent established—without contradiction—that the IT support role was inherently on-site, supporting production systems on the factory floor, and that homeworking would remove essential duties. Neither the OH report recommended remote work or any other specific adjustment; both declared the Complainant fit for work and recorded that her conditions had not prevented attendance or performance. In the Supreme Court case of Nano Nagle School v Daly [2019] IESC 63,, McMenamin J at para 84 of his judgement identified the interpretation issue before the Court in the following terms: -

“Reduced to its essentials, the interpretation issue as applied here could, at one level, be characterised as to whether s.16(1) is to be seen as subject to s.16(3), or vice versa? The terms of the section have been set out earlier. Section 16(1) sets out a premise. This is, that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regards to the conditions under which the duties are to be performed. But the effect of the terminology of s.16(3) is unavoidable. It carves out an exception. It provides that, for the purposes of the “section,” that is, the entirety of s.16, a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation. Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved, the scale and financial resources of the employer, and the possibility of obtaining public funding or other assistance.”

The direction to take from the Supreme Court case is essentially that an employer is not required to remove essential functions or create a different job as an accommodation. No accommodation was advised in two OH reports. The Respondent nonetheless offered a phased return, EAP, private medical insurance (with mid-year re-enrolment to expedite gynaecological care), and income protection. On these facts, I am satisfied no failure to provide reasonable accommodation is made out.

Terms of employment discrimination on disability grounds.

A claim under section 8 requires evidence that the Complainant was treated less favourably in her terms or conditions because of disability. The record shows standard application of performance management (initially informal; a proposed formal step paused due to sick leave), standard welfare management of absence, and two OH referrals. There is no evidence of disability-linked pay reduction, denial of benefits, changes to hours, denial of training, or other disadvantage in terms or conditions. The Complainant’s central comparison—that D worked from home on Fridays while she was refused remote work—does not assist. D’s functions were managerial and included report-writing that could be done off-site; her role was on-site support. Absent evidence that comparators in the same on-site IT role were allowed to work remotely, no inference of disability-related differential treatment arises. The OH evidence, again, goes against any suggestion that disability impaired her capacity such that adjustments in terms were required. This section of the complaint is not upheld for want of prima facie proof under section 85A.

Alleged discrimination on gender grounds.

The gender-based element of the complaint rests on the same factual matrix as the disability claim, with particular emphasis on an alleged remark by Mr D concerning the Complainant’s endometriosis. The Complainant stated in evidence that Mr D told her, “It’s not my problem that you have something like that.” I prefer the evidence of Mr D, who denied the remark unequivocally and consistently. His account is supported by the fact that the Complainant could give no date or context for the alleged statement and that no such comment appears in any of the Occupational Health records.

Even if I were to accept that this isolated comment was made, a single insensitive remark—without any evidence that it resulted in adverse treatment because she is a woman—does not, in itself, establish gender discrimination. The performance expectations applied to her, the management of her absences, the welfare calls, and the return-to-work procedures were, on the documentary record, applied in a gender-neutral manner. The Complainant advanced no female comparator who was treated more favourably, nor did she identify any pattern of conduct suggestive of gender-based differential treatment.

Applying the principles set out in Valpeters, these circumstances fall well short of the threshold required to shift the evidential burden. I therefore find that the Complainant has not established primary facts capable of raising an inference of discrimination on gender grounds.

Stepping back, I accept that the Complainant experienced genuine distress, but the law requires sufficiently specific, credible facts capable of grounding an inference that the adverse experiences complained of were linked to a protected ground, or that the employer failed in its accommodation duty. Those facts have not been established here. The Respondent’s processes—grievance and appeal, Occupational Health referral and review, pause of performance action during sick leave, phased return, and the offer of supports—are consistent with appropriate HR practice and provide a cogent, non-discriminatory explanation for the actions taken.

For all these reasons, I find that no prima facie case has been established in respect of victimisation, harassment, failure to provide reasonable accommodation, disability-based discrimination in terms of employment, or gender discrimination, in accordance with section 85A of the Acts. I therefore find that the Respondent did not discriminate against the Complainant.

For all the above reasons, I find that no prima facie case has been established in respect of victimisation, harassment, failure to provide reasonable accommodation, disability-based discrimination in terms of employment, or gender discrimination, in accordance with section 85A of the Acts. I therefore find that the Respondent did not discriminate against the Complainant.

Employment Equality Acts 1998-2015, Disability, Gender, Harassment, Victimisation, Reasonable Accommodation, Conditions of Employment.