Complainant

Respondent

Parties

Dermot Kelly

St John Of God Community Services Company

Representatives

Aislinn Finnegan BL instructed by Dermot Monahan Solicitors

Lian Rooney 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-00068213-001

19/12/2024

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

CA-00068213-002

19/12/2024

This complaint was submitted on 19th December 2024 and is in relation to alleged breaches of the Employment Equality Acts, 1998 – 2015. The Complainant also submitted a complaint form on 31st July 2024 regarding the same factual matrix. This decision should be read in conjunction with the decision which was made in that case, namely ADJ-00053366.

The Complainant submitted the within complaints as well as two related cases. The decision referenced above in case reference ADJ-00053366 has issued separately. The Complainant confirmed in writing on 13th May 2025, and further at the hearing, that a dispute referred under section 13 of the Industrial Relations Act, 1969 had been withdrawn. That dispute held the reference number ADJ-00051292. Written submissions were received from the Complainant dated 19th December 2024 and although these submissions held the case reference number ADJ-00051292, the Complainant’s representative clarified that they were relevant to the within case. The Respondent provided written submissions and these were received by the Commission on 9th May, 2025. The Complainant submitted replying supplemental submissions on 15th May 2025 and the Respondent also provided supplemental written submissions on 16th May 2025.

All submissions and evidence have been taken into account in reaching this decision.

In his complaint form, the Complainant had requested that an Irish Sign Language interpreter would attend the hearing. Unfortunately, the Commission was unable to secure the attendance of an interpreter on the day that this hearing was due to take place. The Complainant was asked if he wished for the hearing to be adjourned until an interpreter had availability to attend, however he confirmed in writing on 13th May 2025 that he wished to proceed even if an interpreter’s attendance could not be secured. It was stated that he would be in a position to follow the proceedings, give evidence and participate fully so long as there is only one person speaking at a time and where the face of the person speaking is directly visible to the Client. This was reaffirmed at the hearing and it proceeded on that basis.

The Complainant submitted this complaint on 19th December 2024. He set out the following narrative on his complaint form:

CA-00068213-001 - I was victimised for taking an action set out in Section 74 of the Employment Equality Acts

“There was an incident on 14/10/2023 in which another employee spoke to Mr Kelly in an inappropriate manner, including making insulting remarks in relation to his disability, as a result of this, Mr Kelly had to take a period of sick leave from work. Mr Kelly made several complaints about this to his employer, however they had failed to deal with the matter in any substantial way. As a result of this Mr Kelly was left with no option but to make a complaint to the WRC. After his employer was notified of this complaint, he began to feel pressurised and harassed at work. No accommodation was made for Mr Kelly upon his return to work even though he had taken sick leave due to discriminatory workplace treatment and the fact that Mr Kelly lives with a disability, being profoundly deaf. Furthermore, despite having returned to work for 4 months prior and having been declared fit for work by his doctor, his employer sent him for an additional medical assessment to determine if he was fit to continue work. A complaint was made to the WRC by Mr Kelly on or about the 21st of August 2024 in relation to these ongoing issues of discrimination and penalisation which he has been facing in his employment. Prior to this complaint to the WRC, Mr Kelly had raised this matter with his employer several times up to and including filing a formal complaint and Grievance in or around December 2023 and April 2024. However, the matter was not progressed in a timely or efficient manner and since 7th August 2024 Mr Kelly has received no update with respect to this ongoing grievance. This is a substantial and unreasonable delay and the failure to progress Mr Kelly's Grievance in a timely manner constitutes further penalisation. We would request that this complaint be linked to the original complaint which was made and which has a hearing date of 14/01/2025. Complaint reference: A-00062883-001”

And

CA-00068213-002 - I have been discriminated against by my employer, prospective employer, employment agency, vocational training or other bodies

There was an incident on 14/10/2023 in which another employee spoke to Mr Kelly in an inappropriate manner, including making insulting remarks in relation to his disability, as a result of this, Mr Kelly had to take a period of sick leave from work. Mr Kelly made several complaints about this to his employer, however they had failed to deal with the matter in any substantial way. No accommodation was made for Mr Kelly upon his return to work even though he had taken sick leave due to discriminatory workplace treatment and the fact that Mr Kelly lives with a disability, being profoundly deaf. Mr Kelly had raised this matter with his employer several times up to and including filing a formal complaint and Grievance in or around December 2023 and April 2024. Despite several months since his initial complaint in this matter, there had been no substantial progress or resolution in relation to the issues raised. For large periods of time Mr Kelly had been blindsided and the discrimination which he had faces was not taken with sufficient seriousness. The ongoing issued combined with the failure to deal with same resulted in a complaint being made to the WRC in or around August 21st 2024. Since this complaint has been made, this matter has still not progressed, and since 7th August 2024 Mr Kelly has received no update with respect to this ongoing grievance. This delay is an ongoing issue and substantial and unreasonable. We would request that this complaint be linked to the original complaint which was made and which has a hearing date of 14/01/2025. Complaint reference: A-00062883-001.

Complainant’s written submissions

The Complainant’s written submissions dated 19th December 2024 state that he is seeking significant compensation for effects of discrimination and harassment as per section 82(1)(c). It submits that he has been the subject of victimisation following the incident of disability harassment on 14th October 2023. He was not supported when he returned to work after a period of sick leave and his complaints were not dealt with in a timely manner. He was also subjected to an unnecessary medical assessment by an occupational health doctor some four months after he returned to work. The Respondent failed to progress his grievance and sought to pressurise him into withdrawing his complaint at a meeting on 9th February 2024. This caused him significant stress and upset, in particular, in dealing with the discriminatory comments that were made.

The Complainant’s written submissions dated 15th May 2025 state that complaint CA-00068213-002 arises from the same factual matrix as that in ADJ-00053366, but where the effects of the harassment carried on after the submission of that complaint. His core submissions are repeated in relation to the complaint of harassment on the grounds of disability, namely that he had been treated to unwelcome conduct, linked to him being deaf which had created a humiliating, hostile and degrading environment for him. The Respondent failed to make any meaningful efforts to vindicate his right not to be harassed at work.

The Complainant is seeking compensation in respect of the effects of the harassment.

The Complainant also made submissions in relation to his claim of victimisation. It was submitted that there is no requirement for a claim of discrimination to succeed in order to invoke a claim of victimisation and the key elements to establish victimisation are:

The employee had taken action of a type referred to at s.74(2) of the Acts (a protected act),

The employee was subjected to adverse treatment by the respondent, and,

The adverse treatment was in reaction to the protected action having been taken by the employee.

It was stated that the Complainant’s evidence would satisfy the Adjudicator that the Complainant had raised a prima facie case of victimisation.

Complainant’s evidence

The Complainant stated that he had been working with the Respondent since 5th January 2005 as a carer. He has been deaf since birth and received a cochlear implant nine years ago. Vocabulary can be a challenge for him and he mostly receives information by reading lips, expressions and body language. He described an incident that occurred on 14th October 2023. During the course of a conversation with a co-worker, she referred to his “kind of people” and when asked what was meant by that, the reply was “deaf and dumb”. The Complainant replied this terminology was no longer used. He found the use of these words very offensive. He said that he is a deaf man, but he is not dumb. It felt absolutely horrific and made him feel as though he didn’t belong. Prior to this, he had felt appreciated in his role and part of the team. He did not know how to react or what to do. He applied for another job and received an offer, but as his pension would not transfer with him, he decided not to take it. He then met with a counsellor who suggested that he challenge what had happened and so he sent an email to his line manager on 13th December 2023. He asked for the problem and impact to be addressed, but he says that it never was.

On 9th February 2024, the Complainant was asked to attend a meeting with his line manager. He was deeply shocked to find that the person he raised the grievance about was also in attendance. It was a very difficult meeting. Things became aggressive and the Complainant felt completely blindsided. He thought that the two people in the meeting had planned this to sort it out before things went any further and felt that there was an attempt to make him sound like a liar. He told his line manager that he thought this was very unprofessional.

As nothing further occurred after this meeting, the Complainant followed up with the HR Manager on 3rd April 2024. He received a response enclosing the grievance policy and confirmed that he wished to proceed. During this time, he was struggling with work related stress.

The Complainant raised a further grievance about his treatment at the meeting on 9th February 2024. He made it clear how very unhappy he was with the approach that was taken. Eventually, on 22nd April 2024, it was confirmed that an investigation would take place and the Complainant attended a grievance meeting, however it took an inordinate amount of time for the process to be concluded.

As a result of this, and the Respondent’s failure to adequately address his grievances, he was forced to take a period of certified sick leave due to work related stress during the months of February and March 2024. Despite then being back at work for some two months, he was referred for an occupational health assessment by the Respondent, which he attended on 8th July 2024.

The Complainant says that he was the subject of harassment on 14th October 2023 and that he was subjected to unnecessary medical assessment by an occupational health doctor. He further claims that he was not supported on his return to work and that the Respondent failed to progress his grievance in a timely manner. He is seeking compensation for the effects of harassment and victimisation.

Cross examination of the Complainant

The complainant was asked why, when the conversation took place on the 14th of October, he did not report it until the 13th December, a period of two months. He replied that he did not want to make a complaint. When an incident happened with someone else previously, he had been told to let it drop and thought the same thing would happen again. He asked Paula Hand (regional director) if he could move roles and sent an email about this. He looked for another job and did get one but could not take it up due to the impact on his pension.

The Complainant was asked if, when making the request to move, he mentioned the incident to anyone. He responded “no”.

The Complainant was asked if he agreed that he was absent from work from the 12th February 2024 until the 27th of March 2024 and he replied that he did not know, he would have to check the dates.

The Complainant was asked about the occupational health assessment referral and whether he thought it might relate to dismissal. He replied that he felt it was penalisation. He thought the Respondent was trying to find a reason why he couldn't work anymore. He was asked if anyone told him that he might be dismissed and he replied “no”.

Conclusion

It is the Complainant’s case that the delay in addressing his complaint compounded the effects of the harassment that he suffered and that he should receive compensation as a result. In oral submissions, Ms. Finnegan clarified that the purpose of submitting the within complaints was so that the cognisable period would extend up until the 19th December 2024 and the Complainant could seek redress for the effects of the harassment up until that date.

The Respondent’s reply to issues up to and including 31st July 2024 are dealt with in the decision regarding case number ADJ-00053366 and I will not repeat them at length here. However, the Respondent made specific submissions in relation to this case, namely that this is a dual claim and should not be considered by the Adjudication Officer.

In submissions received on 9th May 2025, the Respondent set out the below regarding this case.

Nothing in the Complainant's three complaint forms differentiates between the same claim taken under two pieces of legislation, save for the mere speculation of alleged discrimination, which the Respondent respectfully submits is contrary to case law pertaining to dual claims and which prejudice the Respondent from providing an appropriate response. The Complainant is seeking to rely upon alleged comments made in October 2023, by a Staff Nurse, to substantiate a complaint under the Industrial Relations Act, and multiple complaints under the Employment Equality Acts.

In Henderson v Henderson (1843) 3 Hare 100 the rule developed which prevented duplication of proceedings and which provided there should be finality to litigation (subject to appeal) and that a party should not be twice vexed in the same manner.

This was further developed in Cunningham v Intel Ireland Limited [2013] IEHC 207 where the claimant returned from a combination of sick leave and maternity leave in 2008 and instituted a claim for gender discrimination against her employer on the grounds that Intel had failed to allow her to return to her original job as a workforce mobility manager and failed to provide her with a job to match her grade level.

In her claim before the Equality Tribunal the claimant alleged the discrimination affected her health and wellbeing. Intel brought a motion to strike out the claimant’s Personal Injury proceedings for abuse of process and/or duplication of proceedings in the High Court. Hedigan J noted that the claimant had “attempted to draw an artificial distinction between her Equality Tribunal complaint and her Personal Injury proceedings” and ruled in favour of Intel again observing that as a general rule of law “Thus all matters and issues arising from the same set of circumstances must be litigated in the one set of proceedings save for special circumstances “.

In Parsons v Iarnrod Eireann [1997] 2 I.R. 523 the High Court heard that the Complainant had been dismissed from his employment by the defendant and brought a claim for unfair dismissal under the Unfair Dismissals Acts. Subsequently he also issued proceedings in the High Court seeking a number of reliefs and in particular damages for “wrongful and/or unfair dismissal”.

Having considered the facts of the case before it and the relevant case law the Tribunal determined that both cases were inextricably interlinked with bullying being at the centre of both actions. 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 action to proceed simultaneously.

Indeed, the Tribunal took the view that the claimant was drawing an “artificial distinction” between the two actions. Neither does the Tribunal accept that the facts of the High Court case are “independent” of the Unfair Dismissal claim where a “claim might be pursued at the Tribunal”.

It is the view of the Respondent that to date no attempt has been made to create a meaningful distinction between the matters before the Adjudication Officer and to attempt to do so now would prejudice the Respondent in their ability to provide an adequate response. It would appear to the Respondent all three complaints are inextricably linked with the same facts being at the centre of all claims.

In supplemental submissions received on 16th May 2025, the Respondent acknowledged the withdrawal of ADJ-00051292.

The cognisable period in this case is 20th June 2024 to 19th December 2024. The decision in ADJ-00053366 has addressed all matters up to and including 31st July 2024, the date that complaint form was submitted. It also finds that the events of 14th October 2023 are statute barred and therefore not within the scope of what the Adjudication Officer can consider.

As that decision addresses all matters up to and including 31st July 2024, this decision will address any matters in the period 1st August 2024 to 19th December 2024.

The Respondent submits that this is a dual claim to that contained in ADJ-00053366 and that I therefore do not have jurisdiction to deal with it further.

The Complainant acknowledges that these complaints are based on the same factual matrix but argues that the Respondent’s delay in dealing with the complaint resulted in the effects of the harassment carrying on after that date, and therefore this complaint is necessary in order to address the complete period of the Respondent’s inaction.

The question for me to determine is whether the Complainant has established facts upon which I can be satisfied that he has been discriminated against, subjected to harassment on the grounds of his disability and/or victimised within the meaning of the Employment Equality Act, 1998 (as amended) in the period 1st August 2024 to 19th December 2024.

Complaint CA-00068213-002

Discrimination

In his complaint form, the Complainant says that he was discriminated against by reason of his disability.

Sections 6(1) and (2) of the Employment Equality Act, 1998 at relevant parts state:

6.(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) - (f) [not relevant……]

(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”),

It is accepted by all parties that the Complainant has a disability within the meaning of the Employment Equality Acts, namely that he is a deaf man.

Burden of Proof

Section 85A of the Employment Equality Act 1998 provides as follows:

85A (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.

The effect of this is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.

Melbury Developments Limited v Arturs Valpeters [EDA0917], expanded on what is required to establish the initial proof that discrimination has occurred:

“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. However, they must be established as facts on credible evidence. Mere speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

My first task therefore is to consider if the Complainant has shown that, based on the primary facts, he was discriminated against by the Respondent within the period identified.

I am not satisfied that the Complainant has identified less favourable treatment than another person in a comparable situation, commonly known as a comparator, on the grounds of disability. This is an essential element to meet the burden of proof that discrimination can be taken to have occurred. In the absence of a comparator, the Complainant has not discharged the burden of proof upon him and I find that he has not been discriminated against within this period.

The Complainant also selected the options of harassment, victimisation and “other” on his complaint form. I am unaware from submissions and evidence what “other” may relate to and therefore have no information on which to substantiate this aspect of the complaint. Victimisation is addressed further below. Submissions from the Complainant’s representative make clear that this complaint is one of harassment on the grounds of disability and the continued effects of that harassment.

Harassment

Section 14A of the Employment Equality Act, 1998 relates to harassment. It states:

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

(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.

The meaning of harassment is set out in section 14A(7). It states:

(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,

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.

Harassment is therefore defined as unwanted conduct related to a discriminatory ground that has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating, or offensive environment. The burden of proof rests on the Complainant to establish, on the balance of probabilities, that the alleged harassment occurred, including the conduct complained of.

The unwanted conduct identified was a conversation with a colleague on 14 October 2023. However, this incident falls outside the cognisable period and is therefore beyond my jurisdiction. The issue for determination is whether any conduct occurred between 1 August 2024 and 19th December 2024 that was related to the Complainant’s disability and had the purpose or effect of violating his dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

The Complainant argues that the Respondent’s delay in addressing his grievance compounded the effects of the October 2023 incident. I do not accept that this constitutes harassment in and of itself, as there is no evidence that it was related to the discriminatory ground. The Complainant has not demonstrated that any delay was connected to his disability.

On the evidence presented, I am satisfied that no conduct within the relevant period can be construed as harassment. Accordingly, the Complainant has not established a prima facie case, and I do not find in his favour.

Reasonable accommodation

On his complaint form, the Complainant also identified failure to provide reasonable accommodation as a complaint. However, in the course of his evidence he did not identify any accommodation that the Respondent had failed to provide. I am unaware of any specific request for accommodation that was not provided to the Complainant. On that basis, this complaint has not been substantiated, and I do not find in favour of the Complainant.

Complaint CA-00068213-001

Victimisation

S.74(2) of the Employment Equality Act, 1998 states:

(2) 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) 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,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Legal principles

According to Kimber and Bruton in Employment Law, (2nd Ed), Bloomsbury Professional Ltd, [2017] at 17.67, the three key elements of victimisation are as follows:

a)     “The employee had taken action of a type referred to at s.74(2) of the Act (a protected act);

b)     The employee was subjected to adverse treatment by the respondent, and;

c)      The adverse treatment was in reaction to the protected action having been taken by the employee.

The foregoing elements are aimed at demonstrating that there is a causal connection between their taking of proceedings, or protected act and the adverse treatment by the employer.”

It is therefore for the Complainant to show what protected action was taken; what adverse treatment occurred and that the adverse treatment was in reaction to the protected act.

The protected action in this period is the submission of the complaints to the Commission on 31st July 2024 and 19th December 2024.

Similar to the complaint above, the only potential adverse treatment that I can identify in the relevant period is the Respondent’s delay in resolving the grievance procedure. I cannot see that the Complainant has identified any other potential adverse treatment in this specific period. Even if I accept that this period of delay is adverse treatment, the Complainant has not offered any evidence that it was done in reaction to the protected acts. It is mere speculation, unsupported by evidence, that the delay is connected to the Complainant’s disability. For that reason, I do not find that the Complainant has established facts upon which to support the claim of victimisation.

I therefore find that the complainant was not victimised by the Respondent in contravention of the Employment Equality Act 1998 (as amended) within the relevant period.

For the reasons stated above, I do not find in favour of the Complainant.

Harassment - Victimisation