Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Representatives

  Self-Represented

Aoife Hennessy Sweeney McGann Solicitors

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-00062383-001

25/03/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness for the respondent (a Company Director) gave evidence under affirmation, cross examination was facilitated.

The attendance of members of the public was facilitated, no issue was raised by the parties.

As the matters at issue concern two hidden disabilities, I am satisfied that this amounts to special circumstances such was to depart from the principle of open justice and accordingly I am anonymising this decision.

The complainant submitted that there was a lack of transparency regarding his dismissal.  He stated that it was mentioned to him that he was ‘hyper focussing’ and that that was grounds to infer that he had ADHD.  He stated that the dismissal came out of the blue and that there was a presumption of discrimination on that basis.  He stated that although he mentioned having a bipolar disorder issue in the complaint form, he was not pursuing this matter.

The complainant submitted that he was dismissed and discriminated against by the respondent on the basis of his disability. He noted that he perceived it to be disability notwithstanding that he did not disclose his condition of bipolar disorder and ADHD to his employer as he noted he was not legally obliged to do so.  He submitted that his termination occurred in circumstances that lacked transparency fairness and due process.

The complainant submitted that he received no formal or informal feedback on his performance or behaviour that would justify termination. The complainant submitted that although he did not formally disclose a diagnosis of bipolar disorder or ADHD, aspects of these conditions that he influenced his work behaviour and methods may have become apparent. He submitted that the absence of any attempt to understand accommodate or even discuss these aspects further supports his belief that discrimination influenced his dismissal. The complete lack of a proper explanation for his termination only compounds his concerns.

In his evidence the complainant noted that it was mentioned to him that he was hyper focusing on certain tasks and he suggested that the use of this term was where the respondent inferred his ADHD.  He submits that his dismissal therefore was tainted with discrimination.

The complainant confirmed that he never directly told the respondent that he had a disability, and that the respondent never directly told the complainant that they were inferring a disability upon him.

The complainant gave evidence regarding the number of meetings that he had to review his work output which related to align envisions the use of strategies and tools and or normal work-related meetings but were not performance related. He noted that they talked about the difference between marketing and engineering mindsets but stated that he didn't believe that his performance was being critiqued. He noted that there was one mention of punctuality where he was once a few minutes late. He stated that at a meeting in March he was pressed about his progress and that mention was made of hyper focusing. The complainant stated that he took it that this word is commonly associated with ADHD. He stated that he was not getting prior formal or informal warnings and was given no follow up. He also stated that he did not believe he had to disclose any illness to his employer, and he held back that information at the time.

Under cross examination he confirmed that he never directly told the respondent that he had an illness, he also confirmed that he never sought reasonable accommodations from his client. It was put to him that in his detailed submission he mentioned feedback and performance reviews and he was asked to confirm that issues were raised. In stated that he would not consider them performance issues but just normal work issues that were being raised with him. The complainant stated that he did not agree that emails sent raising those issues support the raising of performance issues.

The respondent submitted that the case made by the complainant at the hearing was not the case made out by him in his complaint form.  He has not produced any evidence that he suffers from a disability as outlined in the Act and he certainly never advised the respondent of the existence of a disability.

The respondent submitted that the phrase ‘hyper focussing’ was never mentioned at all in the performance-related issues that were raised by the respondent with the complainant.  The respondent submitted that the complainant was simply not working out and that he was well aware of this from the performance reviews that were undertaken with him.  The respondent submitted that he was hired as a marketing manager and he had put forward that he could operate at a certain level in the interview for the position, but the fact was that he couldn’t operate at that level.

The witness for the respondent was the Chief Operating Officer who noted that the company was a start-up based in Limerick.  He stated that the complainant presented at interview as an experienced marketing manager. He confirmed that he had no knowledge whatsoever of a disability on the part of the complainant. He confirmed that during the four weeks that the complainant worked for them there were Friday meetings regarding performance issues which were held in a private booth downstairs. He noted that these was different from normal meetings which were held in the office using a white board. The witness noted that the complainant was regularly arriving late and leaving early from his position. He noted that in the 1 March meeting, five key areas were raised with the complainant. He stated that a final meeting was held at which the complainant was then let go.  There was also an issue of complaints ongoing use of ChatGPT to complete sections of the company's website. There was no editing of the content, and this led to spelling mistakes appearing on the company's website. He also noted that a number of company  documents were sent out with mistakes still on them.

The witness stated that complaining that was not good at taking feedback on board and that this was disappointing. He stated that in “daily standups” (meetings) it appeared that the complainant's work bore no resemblance to the tasks he was supposed to be working on and accordingly performance issues were raised with him. The witness stated that he had zero knowledge of the phrase ‘hyper-focusing’ being used and noted that it sounded like business jargon. He stated that to be honest he would not associate the word with a disability and that the decision to terminate was made on the basis of the complainant’s performance only.  As to the complainant suggestion that he was not given a specific reason for his dismissal the witness noted that the complaint was given ‘very clear and frank feedback’.

Under cross examination the witness was asked when punctuality was mentioned, and he made reference to a meeting in February.  It was also mentioned that the complainant arrived late to meetings because he was involved in securing his bicycle. The witness also outlined that the complainant’s probation review took place on 1 March and dealt with performance issues. He noted that several documents were passed on to him from the complainant being noted as having been done but we're clearly from some type of an AI engine. He confirmed that he had to make direct edits to the document. He even noted that the company name was spelled incorrectly.

Although the complainant made reference to a dismissal under the Unfair Dismissals Act, he neither took a complaint under the Unfair Dismissals Act nor does he have the requisite service to avail of the protections of that Act. Therefore, I am considering that the dismissal complaint relates to discriminatory dismissal under the Employment Equality Act which was also mentioned in his initial complaint form.

The complainant suggested that he was dismissed without any warning and that his dismissal was connected to a disability that he had but had never mentioned to his employer. He suggested that the use of the phrase ‘hyper focusing’ led to the employer to infer a disability upon him and that his dismissal was therefore tainted by discrimination.

Section 85A of the act refers to the burden of proof and notes that:

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 complainant has suggested that his dismissal was tainted by discrimination but has not provided any facts to support or otherwise substantiate this claim, simply mere speculation to that effect. The respondent for their part put forward a plausible reason for his dismissal noting that performance matters had been raised with the complainant. The complainant confirmed that these matters were raised with him but would dispute that they were performance matters, simply noting that they were work related issues.

Having regard to the evidence provided by both parties I am satisfied that the complainant was put on notice of certain work matters that were not being done to the level required of him or with appropriate diligence. Whether he considers it to be performance related matters or not is irrelevant in that the respondent considered them to be performance related matters.

In relation to the dismissal the respondent has given a reasonable cause that would explain the complainant's dismissal that does not revolve around inferring a disability upon him. Accordingly, I do not find that the dismissal was tainted with discrimination.

As to the complainant’s suggestion that he was not afforded reasonable accommodation for his disability, he neither sought reasonable accommodation nor disclosed the existence of any disability to the respondent and accordingly I do not find that he was denied reasonable accommodation.

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complainant was not discriminated against in accordance with the Act.

Employment Equality – no inference of discrimination established – complainant not discriminated against