Complainant

Respondent

Anonymised Parties

A Sales Assistant

A Retail Company

Representatives

Olga Shevchenko Immigrant Advice Bureau

Lisa Moloney 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-00067916-001

06/12/2024

Mr A was employed as a Sales Assistant working between twenty and thirty-five hours a week for an average gross weekly pay of approximately €310. He lodged a complaint under section 77 of the Employment Equality Acts 1998–2015, alleging discrimination and harassment on the ground of disability, specifically Attention Deficit Hyperactivity Disorder (ADHD), and claiming a failure to provide reasonable accommodation. He also contended that his working hours were unfairly reduced following a dispute with his manager.

The Respondent denied the allegations in their entirety, maintaining that no formal disclosure of any disability had been made prior to the complaint, though accepting that ADHD is a disability, and furthermore that no request for accommodation was ever received, and that any reduction in hours resulted from general budgetary adjustments affecting all staff.

In her opening statement, the complainant’s representative explained that the Complainant had been diagnosed with ADHD in December 2023 and had informed his store manager, Ms D, of that diagnosis in March 2024. He said he showed her the diagnostic information on his mobile phone. The complainant contended that following this disclosure his treatment at work deteriorated. He was, he said, isolated from colleagues, criticised unfairly, and spoken to in a humiliating way.

The Complainant’s evidence focused on a series of incidents which he believed demonstrated discriminatory treatment. He described an occasion on 29 September 2024 when Ms D challenged him about taking his break and did so in a way he found belittling. He also referred to a workplace celebration in early October 2024 during which other employees were allowed to participate freely, but he was told he could not do so until his official break. The final and most significant incident occurred on 12 October 2024. On that date Ms D instructed him to change the store’s cardboard baler. He said he explained that due to his ADHD he struggled to perform tasks requiring multiple sequential steps of knot tying and therefore could not do it safely. (The Complainant submitted audio recordings of two short discussions on 12 October 2025 between the Complainant and Ms D, which were played at the hearing.)  He stated that Ms D responded mockingly that he “had a disability” and repeated this comment in front of other employees. He said he felt deeply embarrassed, left work early and later learned that his working hours had been reduced.

Under cross-examination, the Complainant accepted that he had not provided the Respondent with a medical certificate at that time, nor had he made a formal written request for accommodation. He said he expected to be contacted by HR once he disclosed the diagnosis. He also agreed that while he had offered to assist with the baler later that day, his offer was limited to helping with minor handling rather than changing the baler which was a more complex operation.

Complainant’s Witness

Ms C, a co-worker, confirmed that she worked with the complainant and regarded him as competent and cooperative. She corroborated his account of being excluded from the staff celebration and gave detailed evidence of the incident on 12 October 2024. She said that shortly before the incident she and her sister were in the break room when Ms D entered and told them that the Complainant “can’t change the baler because he has a mental disability.” Later, during the incident itself, Ms D again made reference to the complainant’s disability in a sarcastic tone and in front of other staff. Ms C said the Complainant appeared visibly upset and left work early.

When questioned, Ms C acknowledged that she could not be completely certain whether the exact phrase used was “mental disability” or “disability,” but she was clear about the overall substance of what had been said.

In a closing statement the Complainant’s representative submitted that ADHD is recognised as a disability under section 2(1) of the Acts and that the evidence, including the corroborated audio recording, clearly demonstrated unwanted conduct related to that disability which had the effect of violating the complainant’s dignity. It was argued that the complainant had therefore established a prima facie case of harassment and that the respondent had failed to rebut it, particularly as no evidence was produced of any equality or anti-harassment training for managers. Authorities cited included Mitchell v Southern Health Board [2001] ELR 201, Corley v Mason Hayes & Curran LLPADJ-00027590 (Workplace Relations Commission, 2021), and Dr Jacqueline Elliott v Reflex & Trim Ltd DEC-E2018-047 (Equality Tribunal, 2018).

Ms D, the store manager, told the hearing that she had asked the Complainant to change the baler and that he had refused, saying he had a disability but without providing further detail. She said she assumed his condition was physical, possibly back related, and she therefore arranged for others to carry out the task.

 Ms D did not deny that the Complainant may have shown her medical information on his phone. She explained that she could not read the screen properly because she did not have her reading glasses on at that time and would have preferred to see a printed document. She said she had no real understanding of what ADHD was at the time and had received no equality training beyond general store induction. She denied mocking or gossiping about the Complainant but accepted that she might have repeated his statement about having a disability when instructing other staff to assist. She maintained that any reduction in the Complainant’s hours was part of a general budgetary measure which affected most staff.

In response to questioning, Ms D said she did not intend to cause offence and believed she was only repeating what the Complainant himself had said when she said to others that he had a disability. 

Mr E, the regional support manager, gave brief evidence that he had never been contacted by the Complainant about any disability-related matter and had no knowledge of it before the complaint was submitted to the WRC.  He confirmed that management induction covered operational procedures but not that there was no training specifically on equality or disability awareness.

Ms F, the HR Support Officer, said she had conducted a welfare meeting with the Complainant during his long-term absence later in 2024. At that stage he had referred to work-related stress but not to any disability. He was referred to occupational health, which recommended continued absence and counselling support. She confirmed that HR had not received any medical documentation or request for accommodation prior to the complaint. She explained that equality and anti-harassment policies are contained in the staff handbook but could not say whether Ms D had ever received formal equality training.

In closing, the Respondent argued that the Complainant had never formally disclosed a disability or submitted supporting documentation, that the remark relied on was merely a repetition of his own words, and that there was no evidence of discriminatory reduction in hours. It maintained that the duty to provide reasonable accommodation was never triggered and that the complaint should be dismissed. The reduction in hours applied to all staff, not just the Complainant, and was a business necessity.

Applicable Law:

The complaint was brought under the Employment Equality Acts 1998–2015 (“the Acts”) which prohibit discrimination on the ground of disability and define harassment as unwanted conduct related to any of the protected grounds which has the purpose or effect of violating a person’s dignity and creating a hostile or humiliating environment. I set out below the relevant sections of 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.

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.”  

Under section 85A of the Acts , once a complainant establishes primary facts suggesting harassment or discrimination, the burden of proof shifts to the respondent.

The Respondent accepted that ADHD constitutes a disability within the meaning of the Acts. The issues to be determined are therefore whether the complainant was harassed on that ground, whether he was treated less favourably in relation to his hours or terms of employment, and whether the Respondent failed to provide reasonable accommodation.

I am satisfied from the evidence of both the complainant and Ms C, supported by the audio recording, that the Complainant’s manager, Ms D, did make a public reference to his disability in a sarcastic or dismissive tone. Although Ms D denied any intention to ridicule, the effect of her remark was clearly humiliating. It is well established that the test of harassment under section 14A of the Acts is objective and focuses on the effect of the conduct rather than the motive. I am also satisfied that Ms D was aware, at least generally, that the Complainant had a diagnosed condition. Her own evidence—that she could not read the complainant’s phone because she lacked her glasses and would have preferred a paper copy—confirms that she knew he was showing her medical information concerning his ADHD.

The Respondent did not demonstrate that it had taken any reasonably practicable steps to prevent harassment. There was no evidence of equality or disability training for store managers, nor any procedure for responding sensitively to a disclosure of disability. For these reasons I find that the Complainant has established a prima facie case of harassment on the ground of disability which has not been rebutted by the Respondent.

The allegation of discriminatory reduction of hours stands on a different footing. The Respondent’s evidence that approximately twenty-five employees experienced similar reductions for budgetary reasons was consistent and credible. The Complainant offered no comparative evidence suggesting he was treated differently because of his disability. On balance, I find that discrimination in relation to terms and conditions of employment has not been established by the Complainant.

The final issue concerns reasonable accommodation. Although the Complainant informed his manager of his diagnosis, he made no request for any particular adjustment, nor did he provide medical documentation at that stage. The duty to provide accommodation arises when the employer knows, or ought reasonably to know, of both the disability and the need for assistance. In this case that threshold was not reached, and I therefore find no breach of section 16(3) of the Acts.

Having considered the totality of the evidence, I am satisfied that the complainant was subjected to unwanted conduct related to his disability which violated his dignity and created an offensive and humiliating working environment. The incident was isolated but public and distressing. Taking into account the nature of the conduct, its impact on the complainant, and the limited duration, I consider that compensation in the sum of €6,000 is fair, proportionate and effective.

In addition, I direct the respondent to arrange equality and disability-awareness training for all managerial and supervisory staff within six months of this decision, with particular emphasis on the handling of disability disclosures and the prevention of workplace harassment.

In accordance with section 79(6) of the Employment Equality Acts 1998–2015, I find that the complainant was harassed on the ground of disability, contrary to section 14A of the Acts. I find no evidence of discrimination in his terms or conditions of employment and no failure to provide reasonable accommodation.

The Respondent is directed to pay the complainant the sum of €6,000 in compensation for the effects of the harassment and to ensure that all managerial staff complete appropriate equality and disability-awareness training within six months of the date of this decision.

Employment Equality Acts 1998-2015, Harassment, Reasonable Accommodation, Disability, ADHD, Discrimination.