ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00044199

Parties:

	Complainant	Respondent
Parties	Carla Gahan	Pobal

Representatives

Mr Maurice Osborne BL instructed by Mr Neil Deery, Hennessy & Perozzi Solicitors

Eimear Greenhalgh IBEC

Complaint(s):

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-00054793-001	31/01/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00054793-002	31/01/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00054793-003	31/01/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00057165-001	16/06/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00057165-002	16/06/2023

Date of Adjudication Hearing: 19/04/2024

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and / or Section 79 of the Employment Equality Acts, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

The Complainant commenced employment with the Respondent on 12 May 2014 as a Support Officer in the Finance Directorate.

Two complaint forms were received from the complainant; details of these complaint forms are as follows:

Received 31st January 2023 – CA 00054793 – 001 / 002 / 003.

Received 16th June 2023 – CA -00057165 – 001 /002

Summary of Complainant’s Case:

Preliminary Objection – response to the Respondent’s Preliminary Issue.

The Respondent has referred to the bringing of these complaints pursuant to the Employment Equality Act 1998 as an “abuse of process”. The Respondent in their written submission has stated that the complaints “ought to have been lodged as one complaint to the WRC” and stated that the lodging of three separate complaints for three cognisable periods was an attempt to make up for negligent “drafting” by the Complainant and that the lodging of three separate complaints for three separate cognisable periods is “an attempt to artificially differentiate her claims to claim multiple awards of compensation”.

By way of response to this submission, the Respondent has acknowledged in their written submission, the subject matter of the Complainant’s outstanding complaints overlaps in many respects with the disputes already heard by the WRC on 7th June 2023. However, this overlapping of issues does not exempt the Complainant from having to submit separate complaint forms for separate cognisable periods.

The Respondent and the Adjudication Officer will be well aware that the Employment Equality Act 1998 grants jurisdiction to Adjudication Officers to address complaints confined to the cognisable period which is the 6 month period prior to the date of the submission of a complaint form to the WRC. Section 77 (5)(a) provides as follows:

Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

In fact, the Adjudication Officer in their written decision for ADJ – 00040270 acknowledged that he “cannot award compensation” after the date that the complaint form is received by the Workplace Relations Commission. In circumstances where the Complainant was subjected to discriminatory acts on the part of the Respondent after the date of the submission of the first complaint form, the Complainant had no option but to submit separate complaint forms seeking redress for these separate cognisable periods. Not only was the Complainant subjected to discriminatory behaviour which warrants an award of compensation, the Complainant incurred financial loss from January 2022 as a result of the Respondent’s decision to remove the Complainant from payroll.

It is submitted on behalf of the Complainant that the Respondent has engaged in discriminatory acts in contravention of the Employment Equality Act 1998 from in or around September 2021. In circumstances where the Respondent continued to flagrantly discriminate against the Complainant for a period in excess of 6 months, the Complainant was left with no alternative but to submit separate complaint forms addressing the breaches of the Employment Equality Act 1998 by the Respondent.

INTRODUCTION

· The within submissions are outline in nature only and are not intended to be read as

the Complainant’s entire position in respect of this case. The Complainant fully

reserves the right to adduce evidence at the hearing of this matter and to cross

examine the Respondent on their evidence.

· The Respondent is a state-sponsored organisation responsible for the administration

and management of state funded social services with a registered address at Holbrook

House, Holles Street, Dublin 2.

· The Complainant commenced employment with the Respondent on 12 May 2014 as a Support Officer in the Finance Directorate.

· The Complainant was paid the sum of €1,773.14 gross on a monthly basis since in or around January 2017 when she began working on a part-time basis for the Respondent

· On 31st January 2023 and 16th June 2023, the complainant submitted the within WRC Complaint Forms pursuant to the Employment Equality Act 1998 for discrimination on grounds of disability. This is the second and third complaint form submitted by the Complainant which addresses a second and third cognisable period during which, it is submitted on behalf of the Complainant, the Respondent continued to subject the Complainant to discriminatory behaviour in breach of the Employment Equality Act 1998. The Respondent discriminated against the complainant when it treated her less favourably than other employees by failing to reasonably accommodate the complainant in circumstances where she was unable to return to work on a full-time basis because of a diagnosed disability. The Complainant also submitted complaints pursuant to the Organisation of Working Time Act 1997 and the Term of Employment (Information) Act 1994.

· The Complainant seeks compensation due to the breach of this legislation by the Respondent.

BACKGROUND

· By way of letter dated 7 May 2014 ,having interviewed for the role, the

Complainant was offered the position of Support Officer (G1) in the Respondent’s

Finance Directorate on a fixed term contract. A contract of employment for this

position was attached to the said letter and this was signed by the Complainant on 8

May 2014. The Complainant commenced her role with the Respondent on 12 May 2014.

· By way of letter dated 8 September 2014, the Complainant was offered an extension to her fixed term contract of 8 May 2014 in the Respondent’s Finance Directorate.

· On 1 December 2014, the Complainant was notified that she had successfully completed her probationary period.

· In November 2017 the Complainant returned to work on a part-time basis.

· On her return to work in November 2017 the Complainant met with Trevor Finnegan

and John Byrne of the Respondent. It was agreed that the Complainant would work a

3-day week in her role assisting with the Early Childhood Care and Education

Programme.

· The Complainant was on sick leave from February 2019 to September 2019.

· The Complainant returned to work in September 2019 assisting with the Community

Childcare Subvention Plus Saver Programme. The Complainant worked Monday to

Friday 10.00am – 2.00pm in this role.

· On 12 March 2020 the Complainant went on sick leave.

· On 15 March 2020 the Complainant was admitted to the Mater Hospital. The

Complainant was diagnosed with pneumonia.

· The Complainant received treatment in the Mater Hospital until 21 March 2020 when

she was discharged.

· In May 2020, the Respondent’s doctor, Dr McDermott, confirmed that the

Complainant was fit to return to work.

· In May 2020, the Complainant returned to work. The Complainant was working

remotely as a result of the Covid-19 pandemic.

· In January 2021 the Complainant was diagnosed with Covid-19 and admitted to the

Mater Hospital. As a result of same, the Complainant went on sick leave.

· On 6 September 2021 the Complainant attended the Respondent’s doctor, Dr John

McDermott, for an occupational health assessment. During this meeting, the

Complainant informed Dr McDermott that she was “targeting” a return to work that

month. Dr McDermott recommended a “phased” return to work whereby she would

gradually return to her normal shift pattern of 20 hours per week.

· In October 2021 the Complainant met with Trevor Finnegan and Celeste McCloskey to

discuss her return to work. At this meeting, Mr Finnegan informed the Complainant

that she could not continue working on a part-time basis and that her only option was

that she return to work on a full-time basis. The Complainant responded by stating

that she would not accept this offer.

· On 29 October 2021 the Complainant received an email from Celeste McCloskey

informing her that she would be required to return to full-time work from January

2022.

· On 15th December 2021 the Complainant received a letter from Celest McCloskey requiring the Complainant to attend the Respondent’s doctor for an assessment as to the complainant’s ability to return to full-time work in January 2022. In the same letter, the Respondent acknowledged that the Complainant’s sick leave certificate dated 7th December 2021, which had been prepared by the Respondent’s doctor , had stated that the complainant was not fit for full-time work.

· On 15th December 2021 the Complainant received another letter from the Respondent stating that they were unable to continue to facilitate the part-time arrangement of 20 hours per week and that she would be required to return to work on a full-time basis from January 2022.

· On 17 December 2021 the Complainant emailed Ms McCloskey requesting that an appointment be scheduled for her to visit the Respondent’s doctor.

· On 6 January 2022 the Complainant sent an email confirming her availability to attend a meeting with the Respondent’s doctor on 11 January 2022.

· On 11 January 2022 the Complainant attended the Respondent’s doctor, Dr JohMcDermott, for an occupational health assessment. The Complainant informed Dr McDermott at this meeting that she continued to attend the “long COVID” Specialist clinic in the Mater Hospital. The Complainant reported persisting symptoms including reoccurring fatigue, dizziness and being lightheaded. The Complainant informed Dr McDermott that she intended to return to work on reduced hours and that both her Specialist in the Mater Hospital and her GP had endorsed the proposal that she return to work on a part-time basis. The Complainant stated that she wanted to retain the option of returning to full-time hours once she was medically fit to do so. Dr McDermott suggested that the Complainant work on a part-time basis for 12 weeks at which point she could be reassessed to consider whether she would be fit to return to full-time work. Dr McDermott said:-

“In my opinion, Ms Carla Gahan is medically fit to work reduced (part-time)

hours for the next 12 weeks at which stage her progress might be reviewed

again.”

· On 10 January 2022 the Complainant received an email from Ms McCloskey stating as

follows: -

Further to your email below. I refer you to the letter dated 15th December 2021,

in which it clearly states that we will not be in a position to facilitate reduced

working hours. And as you have submitted a doctors letter stating that you are

medically not able to work full time, you will not be able to return to work until

you are able to work the full 37.5 hours as required for the position that you

hold. I’ve attached the letter for your reference and convenience. You therefore cannot return to work and will have to stay out on sick leave. Please note that as you have exhausted your paid sick leave you will not be paid.

· On 20 January 2022 the Complainant received a letter from Celeste McCloskey stating as follows:-

We have now received the report form the Company Doctor (see attached) who

confirm that you are not currently fit to return to full time work. As stated to

you on several occasions, the role you occupy is a full-time role. The reduced

working hours arrangement and various phased return to work arrangements

we have previously afforded you were always understood to be temporary

arrangements/accommodations to you, and this has been clearly

communicated to you on a number of occasions. We confirmed to you in

October 2021 and again in a letter on 15th December 2021 that we cannot

continue to facilitate reduced working hours and that you will be required to

resume your full-time hours from January 2022.

Since the Company Doctor has clearly determined, you are not fit to return to

full time role, there is no alternative but for you to remain on sick leave.

· On 14 March 2022 the Complainant attended the Respondent’s doctor, Dr John

McDermott, for an occupational health assessment.

· On 6 April 2022 the Complainant received an email from Joyce Barrett, of the

Respondent, attaching the report of Dr John McDermott relating to the Complainant’s assessment of 14 March 2022.

· In Dr McDermott’s report he stated as follows:-

“Ms Carla Gahan is continuing to struggle with post-COVID-19 (‘long Covid’)

symptoms. Carla remains under the care of a Specialist in Infectious Diseases

with whom she has a further appointment on 1st April. I am satisfied that (at

best) Carla would still only be capable of/for part-time hours at this juncture. I

will be happy to review Carla in 6-8 weeks’ time at your discretion.”

· On 12 May 2022, the Complainant emailed Ms Barrett confirming her desire to return to work on part-time hours, in line with what the Respondent’s doctor, Dr McDermott, had suggested.

· On 17 May 2022, the Complainant was notified again that the Respondent was

refusing to allow her return to work on a part-time basis.

· On 19 September 2022, the Complainant attended the Respondent’s doctor, Dr

McDermott who again confirmed that the Complainant was not to return to full-time

work as a result of her long Covid diagnosis.

· On 11 January 2023 the Complainant emailed Mr Trevor Finnegan, of the Respondent. The Complainant requested that Mr Finnegan invoke a grievance on the

Complainant’s behalf as a result of the discriminatory treatment she had been

subjected to.

· On 1 March 2023, the Complainant attended the Respondent’s doctor, Dr McDermott who suggested a phased return to work.

· The Complainant’s pay was removed by the Respondent in January 2022 as she had

no further entitlements to sick pay. The Respondent failed to inform the Complainant of her potential eligibility for critical illness payments despite having been on notice of her disability for in excess of 6 months.

· On 25th May 2023 the Complainant attended Dr Kelvin Chong, Navan Road, Medical and Dental, Centric Health. In Dr Chong’s letter to the Respondent’s Doctor, Dr John McDermott, he makes reference to the fact that the Complainant was diagnosed with long covid and was attending the Mater Hospital Covid Clinic. Dr Chong stated that the Complainant was now attending the Infectious Disease Department in St Vincents Hospital to address her diagnosis of long covid. Dr Chong reported that the Complainant’s symptoms included fatigue and tiredness. In this letter Dr Chong also references the fact that the Complainant told him that she had been advised by the Respondent to increase her weekly workload by 5 hours until she returned to work on a full-time basis. In response to this suggestion, Dr Chong clearly states that in his opinion the Complainant would not be able to do this and recommended that the Complainant remain working for 20 hours a week until a later review.

· On 15 June 2023, Dr John McDermott wrote to Liz Coyne the HR Business Partner of the Respondent. In this letter, Dr McDermott confirmed the above outlined view of Dr Kelvin Chong in the following terms:

This is a complex caser but the objective medical evidence (as detailed by her GP) would lean towards a more gradual return to work …. perhaps facilitating Carla with a working @ 20 hours per week for the initial 3-4 months for example ….. and then review at that point. I would be happy to discuss.

· On 14 July 2023 the Complainant received an email from Liz Coyne of the Respondent in which the Respondent at long last agreed to implement a phased return to work which the Complainant’s and the Respondent’s Doctor had been recommending since September 2021.

SUBSTANTIVE LEGAL SUBMISSION-EMPLOYMENT EQUALITY ACT 1998

Discrimination

· Section 6 (1)(b) of the Employment Equality Act (as amended) (“the 1998 Act”)

provides that:

“(2) As between any 2 persons, the discriminatory grounds (and the

descriptions of those grounds for the purposes of this Act) are—

(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”)”

Definition of “disability”

· Section 2(1) of the 1998 Act defines “disability” in the following terms:-

“(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

is imputed to a person;”

· Section 6(1)(a) of the 1998 Act provides that:-

“discrimination shall be taken to occur where 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. exists in the future, or

iv. is imputed to the person concerned,

Burden of proof

· Section 85A(1) of the 1998 Act addresses the burden of proof and provides:-

“where in any proceeding’s facts are established by or on behalf of a claimant

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.”

· In Mitchell v Southern Health Board [2001] 12 ELR 201 the court set out the following

three part test as regards the onus that is on a Complainant to discharge the burden

of proof: -

“(1) It is for the Complainant to prove the primary facts upon which he or she

relies in seeking to raise a presumption of discrimination. If the Complainant

fails to do so, he or she cannot succeed.

2.) If the primary facts relied upon are proved, it is for the Adjudication

Officer/Court to evaluate those facts and consider if they are of sufficient

significance to raise a presumption of discrimination.

3) If the facts proven are considered of sufficient significance to raise a

presumption of discrimination the onus of proving that there was no

infringement of the principle of equal treatment passes to the Respondent”.

Duty on an employer to reasonably accommodate

· Section 16 (1) of the 1998 Act provides that nothing in the 1998 Act is to be:

“construed as requiring any person to recruit or promote an individual to a

position, to retain an individual in a position, or to provide training or

experience to an individual in relation to a position, if the individual –

a) will not undertake (or, as the case may be, continue to undertake) the duties

attached to that position or will not accept (or, as the case may be, continue to

accept) the conditions under which those duties are, or may be required to be,

performed, or

b) is not (or, as the case may be, is no longer) fully competent and available to

undertake, and fully capable of undertaking, the duties attached to that

position, having regard to the conditions under which those duties are, or may

be required to be, performed.”

· Section 16(1) of the 1998 Act imposes a clear obligation on employers to reasonably.

accommodate an employee where they have been diagnosed with a disability

pursuant to section 2(1) of the 1998 Act: -

“(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,

(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.”

· In the Supreme Court decision of Nano Nagle School v Daly [2019] IESC 63 the Court

noted that there is a very high burden on an employer to reasonably accommodate

an employee with a disability. The Court held that once there is not a

“disproportionate burden” on the employer they must endeavour to accommodate an employee with a disability.

· The Court also noted that an employer should consult with an employee with regards appropriate accommodations that can be made. At para. 105, the Court held: “a wise employer will provide meaningful participation in vindication of his or her duty under the Act”.

· The Court of Justice of the European Union, in the case of HR Rail SA (C-485/20) ruled that the concept of “reasonable accommodation” includes the reassignment of a worker to a different position once the reassignment does not impose a disproportionate burden on the employer. This was also held by the Irish Supreme

Court in Nano Nagle.

· In HR Rail SA, the Court of Justice held that the Framework Directive provides that

“appropriate measures” are: “effective and practical measures to adapt the

workplace to the disability, for example adapting premises and equipment,

patterns of working time, the distribution of tasks or the provision of training

or integration resources” (emphasis added).

· However, the Court of Justice confirmed that the above is a “non-exhaustive list” of

appropriate measures, which may be physical, organisational, and/or education and

the Framework Directive prescribes a broad definition of the concept of “reasonable

accommodation”.

APPLICATION TO THE COMPLAINANT

· In January 2021, the Complainant was diagnosed with Covid-19. The Complainant was admitted to the Mater Hospital and treated for pneumonia.

· In October 2021, the Complainant sought to return to work. Dating back to January

2021, Professor Lambert diagnosed the Complainant with long Covid.

This diagnosis is a clear definition of a disability as set out in section 2(1) of the 1998

Act.

· The Respondent failed to take any steps to accommodate the Complainant despite

their own doctor clearly stating in multiple reports that the Complainant was not fit

to return to full time work. This was a flagrant breach of section 16(1) of the 1998 Act.

· Having initially accommodated the Complainant by coming to an agreement that she

would work for the Respondent on a part-time basis, the Respondent withdrew this

arrangement for no apparent reason. The Respondent failed to consult with the

Complainant despite their own doctor finding that the Complainant was not fit to

return to work full-time.

· Further, as a result of the Respondent refusing to reasonably accommodate the

Complainant, she has incurred financial loss of €30,143.38(Being 17 months loss of

wages as of 1st June 2023).

CONCLUSION

· As a result of the Respondent’s conduct, the Complainant seeks the appropriate

redress pursuant to the 1998 Act.

· The Complainant reserves the right to adduce further evidence and submissions at the hearing of the action.

Summary of Respondent’s Case:

Preliminary Issue

Strictly without prejudice to the foregoing, the Respondent submits the additional preliminary matters for consideration by the Adjudication Officer.

CA-000554793 – 001, CA-000554793 – 002 and CA – 00057165 under Section 77 of the Employment Equality Act, 1998.

Parallel complaints/ Abuse of process

The subject matter of the Complainant’s outstanding complaints overlaps in many areas with claims already heard by the WRC including:

a. The Complainant alleging that the Respondent refused to reasonably accommodate her disability by not providing her with part-time hours.

b. That the Complainant was placed on unpaid sick leave after the Respondent allegedly refused to reasonably accommodate the Complainant with part-time hours.

In addition, many of the within claims relate to the same set of facts and thus overlap not only the Complainant’s prior claims but with each other. For instance, two of these complaints refer to the Respondent’s alleged failure to reasonably accommodate her by not providing her with part-time hours, which she alleges to be discriminatory, and repeats the above referenced previously heard issues in additional complaints.

It is a well-established principle that an employer cannot be vexed twice by the same complaint. In particular, under the Employment Equality Acts, it is established that a Complainant cannot receive an award for the same set of circumstances under two headings of the Act.

The Complainant’s claims under ADJ-00040270, CA – 00051473 – 001, CA – 00051473 – 002 and CA – 00051473 – 003 which were heard on 07 June 2023 are of the same subject matter as the claims that are before us today. This is contrary to:

a. the general principle that parallel complaints cannot be pursued and

b. the rule in Henderson v Henderson. It should also be noted that the Respondent is currently awaiting a decision of this adjudication hearing.

There is a well-established doctrine that a court should not again entertain a disputed issue which was or could have been decided previously. The well-known starting point for this doctrine is the judgment of Wigram VC in Henderson v Henderson (1843) 3 Hare 100, from which the following passage is frequently cited:

‘… I believe I state the Rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of Res Judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties exercising reasonable diligence might have brought forward at the time’”.

It is the Respondent’s position that the entirety of the matters comprehended in the Complainant’s outstanding claims ought to have been lodged as one complaint to the WRC and that it is opportunistic of the Complainant to lodge several individual complaints whether out of negligence in the drafting of her original complaint, or in an attempt to artificially differentiate her claims to claim multiple awards of compensation.

It is the Respondent’s position that many aspects of the claims that are to be heard today, appear substantially the same as each other, and further mirror her previous complaints. They thus ought to have been lodged as one. She ought not to seek compensation under multiple claim numbers for the same issues and certainly the WRC ought not permit same.

Henderson v Henderson was one of a number of authorities (including a number of Irish authorities to the same effect) considered by the Supreme Court in Carroll v. Ryan [2003] 1 IR 309. In his judgment (with which McGuinness and McCracken JJ agreed) Hardiman J. stated: “There is a well-established rule of law whereby a litigant may not make the same contention, in legal proceedings, which might have been, but was not, brought forward in previous litigation. This Rule is often traced to the Judgment of Wigram VC in Henderson v. Henderson (1843) 3 Hare 100.”

The learned Judge then quoted with approval the passage from the judgment of Wigram VC already set out above.

The Respondent submits that in pursuing circa five outstanding complaints, in addition to the claims already heard, the Complainant is engaging in an abuse of process.

The Respondent notes the High Court’s commentary in Morgan v the Labour Court and Ors [2022] IEHC 361 in which the plaintiff’s actions were categorised in the following terms. “As we have seen, the appellant has engaged in the habitual and persistent institution of proceedings both before the WRC and in the courts in respect of issues related to her removal from her office as teacher with the Board, notwithstanding that hose issues have been the subject of binding and conclusive prior determinations. She has repeatedly engaged in the vexatious re-packaging of claims already determined against her. Indeed, she made clear to the Court during the hearing of the various matters before me that she intended to continue her campaign of proceedings.”

The Respondent respectively requests that the Adjudicator deal with the preliminary matters first and foremost and reach a conclusion on same before deciding whether the substantive complaint under the Employment Equality Act, 1998 should be heard.

In the case of Employee v Employer UD969/2009, the Employment Appeals Tribunal was asked to make a decision on a preliminary matter first before moving to hearing the substantive case. Given the significant preliminary points raised, the Tribunal moved to hear the preliminary matter first and reach a decision on same.

In the case of Bus Eireann v SIPTU PTD048/2004, included at Appendix 34 the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case ‘where it could lead to considerable savings in both time and expense’ and where the point was ‘a question of pure law where no evidence was needed and where no further information was required’.

The Respondent would respectfully request that the Adjudicator reach a determination first and foremost on the aforementioned issue before deciding if the substantive case can be heard.

Background to the Respondent.

The Respondent works on behalf of the Irish Government in conjunction with communities and local agencies, to support social inclusion and local community development. The Respondent manages funding and provides support for 38 Government funded programmes in the areas of Social Inclusion and Equality (SI&E), Inclusive Employment and Enterprise (IEE) and Early Learning and Care (ELC), allocating €901 million to local and national community-based organisations in 2022.

Background to the Complainant

The Complainant commenced employment with the Respondent on 12 May 2014 in the role of a Contact Advisor on a yearly salary of €37,980 based on a 37-hour working week as per her contract of employment.

Background to the complaint

· The Complainant commenced employment with the Respondent on 12 May 2014 in the role of a Contact Advisor.

· During the year of 2016, the Complainant was on Maternity Leave.

· On 30 December 2016, the Complainant submitted a medical certificate which stated she was unfit to work until 20 January 2017 due to depression.

· For the majority of 2017 the Complainant was absent from work on certified sick leave.

· On 21 August 2017, the Complainant attended an occupational health assessment as provided for under the Respondent’s sick leave scheme.

· The occupational health report indicated that the Complainant’s condition had improved with the Complainant’s targeted return to work date being the first week in October 2017. The report outlined that the Complainant had informed the doctor that she had informed the HR department of her preference to work reduced hours. The report further recommended that the Complainant return to work on a phased basis and might work two half days and one full day on her first week which may then increase to two full days and one-half day the second week and three full days from week three of her return.

· On 10 November 2017, the Complainant returned to work following a period of long-term absence.

· In mid-January 2018, the Complainant returned to work on a three day week. As a result of the annual leave that had accrued from the Complainant’s absence, it was agreed that the Complainant would work three days a week and then take Tuesday and Thursday as annual leave from January – June 2018.

· On 07 June 2018, the Complainant attended an occupational health assessment. The report outlined that the Complainant had been absent due to recurring infections. The report further noted that the Complainant had ongoing childcare issues and personal life stressors and would likely only be able to cope working three days a week.

• On 15 June 2018, the Complainant attended a meeting with her manager to discuss her current working arrangement and absences as well as the current medical report from the occupational health physician. During the meeting the Complainant’s manager noted the pattern of the employee’s absences and that the three-day week working arrangement has not worked as anticipated due to excessive absences. The Complainant’s manager discussed options to accommodate the Complainant’s three-day working week and noted that as the Complainant had now nearly exceeded her annual leave carry over allowance, her salary would be pro-rated to reflect the three day working week.

• During this period in 2018 (January to June), the Complainant was absent of 14 separate occasions and was frequently late.

• On 26 July 2018, the Respondent wrote to the Complainant summarising their meeting held on 15 June 2018 and informed the Complainant that her application for a reduced working week had been approved for an initial period of six months, starting from 01 July 2018. The letter did however highlight that this arrangement would be reviewed after six months or earlier should this arrangement need to change to reflect the needs of organisation and the responsibilities of the employee participating in the arrangement.

• The Complainant worked the shift pattern arrangement for the remainder of 2018 for which she was absent for 14 days and had a high frequency of lateness.

• From 15 February to 23 September 2019, the Complainant was absent from work on Certified sick leave for various reasons.

• On 04 July 2019, the Complainant attended an occupational health assessment which indicated that she would be fit to return to work in the next 6-8 weeks and that a three-day working week would allow her greater flexibility to look after her child.

• On 10 September 2019 and prior to her return to work from certified sick leave, the Respondent wrote to the Complainant following a meeting with the Complainant and her manager on 25 July 2019, the letter detailed that the Complainant’s return to work date would be 23 September 2019. The letter further detailed that the Complainant’s request to work five mornings a week from 10:00 to 14:00 (rather than three full days a week) to support the Complainant’s childcare arrangement. The letter also highlighted the Respondent’s concerns regarding the Complainant’s punctuality and attendance.

• During this period, the Complainant was absence for three days and had a high frequency of lateness.

2020

· From 09 March – 19 May 2020, the Complainant was on certified sick leave due to a Respiratory Infections.

· On 18 May 2020, the Complainant attendant an occupational health assessment which reported that the Complainant’s fatigue and respiratory symptoms had largely abated. The reported further detailed that the Complainant had targeted the 20 May 2020 as her return-to-work date. The report further recommended a phased return to work.

· On 25 June 2020, the Complainant attended a disciplinary meeting as a result of attendance and time keeping issues. The Complainant availed of her right to be represented by a Trade Union official at this meeting. The meeting detailed how the Complainant had been absent for 41 days on 4 separate occasions since her return to work in September 2019 and 29 separate instances where the Complainant has been late for work since January 2020. It was emphasised to the employee that 10:00AM was the end of the flexi clock in period and that the Respondent could not make an exemption for this.

· The Complainant’s explanation for these attendance and timekeeping issues was centred around both childcare issues and medical conditions.

· On 03 July 2020, the Respondent wrote to the Complainant to inform her that due to the timekeeping and attendance issues and the explanations provided the Complainant was being issued with a verbal warning.

· From 19 May 2020 until the remainder of the year, the Complainant was required to work from home due to Covid-19 restrictions. During this time, there were no recorded absences.

2021

· From 01 January – 03 November 2021, the Complainant was on certified sick leave due to long covid.

· On 06 September 2021, the Complainant attended an occupational health assessment to which she noted that she was not yet feeling well enough to return to work. The report recommended a phased return to work beginning 27 September 2021.

· The Complainant had accrued a number of annual leave days while on sick leave, the Respondent agreed that she could take 25 days annual leave for the period of 29 November – 31 December 2021.

· The Respondent communicated to the Complainant via email on 29 October 2021 which was sent after the Complainant hung up the phone during a phone conversation and in subsequent letters reiterating that her role remains a full-time role and confirmed they were unable to continue to facilitate the temporary part time arrangement of 20 hours per week and would require her to return to full time working of 37 hours per week from January 2022. The letter further detailed that 2022 would bring a significant number of additional requirements to the Complainant’s division and that it was imperative that the organisation has all staff on board working full time for Early Years in 2022.

· The Complainant returned to work on 04 November 2021, which was her first day working that year. HR had liaised with the Complainant during September 2021 and following discussions with her GP, Consultants and an occupational health referral, the medical advice was that she was fit to return to work on a phased basis from the end of October 2021. Her working arrangement was a temporary one of 20 hours per week.

2022

· From 01 January – 31 December 2022, the Complainant was absent from work as a result of Long Covid.

· On 06 January 2022 the Complainant contacted the Respondent by email requesting confirmation on whether she could return to work on 11 January 2022, in a part time capacity. The Respondent reiterated to the Complainant in a correspondence dated 20th January 2022, that as per the letter she received on 15th Dec 2021, outlining the position, that she was required to return to a full-time working schedule of 37 hours per week from January 2022 and if unable to do so would need to remain on unpaid sick leave until fit to return to full – time.

· On 11 January 2022, the Complainant attended an occupational assessment. The report detailed that the Complainant was continuing to attend a ‘long Covid’ specialist clinic and that the Complainant was looking to return to work on reduced hours (20 hours per week) but wanted to retain the right to return to full time hours when she was medically fit to do so. The report suggested that the Complainant work a reduced week for the following 12 weeks with the view to increase her hours gradually thereafter.

· On 24 January 2022, the Complainant emailed the Respondent to confirm she had referred the correspondence on 20 January 2022 regarding her return to full time hours from the Respondent to Denis Keane of FORSA. The Complainant had a further medical review with the company doctor in March 2022, which reiterated she was fit for part time hours only.

· On 22 April 2022, the Respondent wrote to the complainant to advise that she could apply for the Complainant’s permanent health insurance scheme which is in place for those who have exhausted the company sick pay scheme. The Respondent did however point out that the decision to accept or reject the Complainant’s claim would be a decision made by an external insurance company and would not be a decision made by the Respondent.

· The Respondent and the Complainant’s trade union representative (Denis Keane, FÓRSA had been in contact by phone numerous times, however the situation remained unsolved with Mr Keane moving sections within FÓRSA in the summer of 2022.

· On 19 September 2022, the Complainant attended an occupational health assessment. The report of this assessment detailed that the Complainant was continuing to attend a specialist and her GP on an ongoing basis as a for the management of post - Covid 19 symptoms. The report recommended that the Complainant could return to work on a gradual basis such as 4 hours per day with the intention to review this in 6-8 weeks at the Respondent’s discretion.

2023.

· On 11 January 2023, the Complainant lodged a formal grievance to Mr Trevor Finegan (HR Operations Manager) stating that she was unhappy with how the Respondent dealt with her request to return to work on a part time basis.

· On 09 February 2023, the Complainant attended a grievance meeting and was accompanied by a Derek Kelleher of FÓRSA.

· On 16 February 2023, Ms Liz Coyne (HR Business Partner) wrote to the Complainant to inform her that her grievance was not upheld as there was no reference to the alleged unfair treatment as previously raised. The Complainant was advised of her right to appeal this outcome.

· On 20 February 2023, the Complainant appealed the outcome of her grievance meeting to Ms Coyne citing that she felt that all the information was not fully considered during the process.

· On 22 February 2023, Mr Doherty responded to the Complainant’s grievance appeal and requested that the Complainant forward in writing the full and specific details as to what information the Complainant felt was not considered which should relate to the three areas under which the Complainant raised her initial grievance.

· The Complainant responded to this request on 27 February 2023 enquiring where she could find the appeals process and requested the minutes of the grievance meeting. To which Mr Doherty responded to by providing the minutes of the grievance meeting as well as further information on the appeals process.

· The Complainant attended the Company Doctor on 28 February 2023. The report advised that the Claimant “remains ‘partially fit’ for work and could attempt a phased return on reduced hours (e.g., 4 hours per day initially) with a view to increasing to her normal hours after a 6-8 week period all going well”.

· On 27 March 2023, the Complainant was invited to attend an appeal grievance meeting set for 29 March 2023.

· On 29 March 2023, the Complainant attended this appeal grievance meeting and was accompanied by Ruairi Creaney of FÓRSA. The outcome of this grievance was that the appeal was not upheld as the working arrangement of 20 hours a week was a temporary one. The letter further outlined that the Respondent would give the Complainant a final opportunity to return to work on a phased basis over a period of 8 weeks to then return to full time work. The Complainant responded to this letter claiming that the proposal was not in line with the occupational health doctor’s advice, Mr Doherty responded to this email stating that this proposal was in line with the occupational doctor’s advice to which the Complainant responded referring to an occupational health report dated 20 September 2022.

· Mr Doherty wrote to the Complainant on 25 April 2023 and followed up again on 08 May 2023 in relation to the Respondent’s proposal to return to work on a phased basis for 8 weeks with the intention to return to full time work. In Mr Doherty’s correspondence on 08 May 2023, he invited the Complainant to attend a meeting with Ms Coyne and Mr Barry Harte (Head of Early Years Operations) on 11 May 2023 to discuss a return-to-work date of either 22 or 29 May 2023.

· On 08 May 2023, the Occupational Health Physician informed the Respondent that he felt the phased return to work was appropriate and would reach out to the Complainant to invite her to submit any updates or opinions from her own GP or specialist.

· On 07 June 2023, the Complainant attended a WRC adjudication hearing having taking claims under the Employment Equality Act 1998 and the Terms of Employment (Information) Act, 1994. The Respondent is currently awaiting a decision from this adjudication hearing.

· The Complainant has since returned to work as of July 2023.

Substantive Argument

Prima Facie Case of Discrimination

It has been the well-established practice of the Equality Tribunal and the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.

Section 85A of the Act provides that:

“where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”.

This requirement has been explored in a number of cases included the case of Melbury Developments Limited v Arturs Valpeters (EDA0917) wherein the Labour Court stated as follows:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. 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 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”.

The Labour Court in the case of ICON Clinical Research and Tsourova (EDA 071) stated that if:

“The Court is satisfied that if the complainant can establish facts from which discrimination can be inferred the onus of proving the absence of discrimination shifts to the respondent. The test normally applied by the Court to determine if the probative burden shifts to the Respondent is that formulated in Southern Health Board v Mitchell [2001] E.L.R. 201. This requires the complainant to prove the primary facts upon which he or she relies and to satisfy the Court that those facts are of sufficient significance to raise a presumption of discrimination.”

The Labour Court in Southern Health Board v Mitchell, [2001] ELR 201 Court stated:

“The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if those primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In Margetts v Graham Anthony & Company Limited, EDA038, the

evidential burden which must be discharged by the complainant before a prima facie

case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

In the instant case, the Complainant has alleged discrimination on the grounds of disability and failing to provide reasonable accommodation for a disability, but has hitherto produced not a shred of evidence to support this allegation.

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

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

Reasonable Accommodation

It is the Respondent’s position that the Complainant was not fully fit to perform the duties associated with her role. On 14 March 2022, the Complainant attended an occupational health assessment. The report place restrictions on her fitness to work meaning that the Complainant was unable to fulfil her contractual duties.

In response to the Complainant’s claim that the Respondent failed to reasonably accommodate her, it is the Respondent’s position that given the restrictions on the Complainant’s fitness to work, the Respondent was not in a position to allow the Complainant to return to work. The Respondent has a duty of care to all its staff in relation to their health, safety and welfare at work. By not permitting the Complainant to return to work before she was fully fit cannot be seen to amount to discrimination.

The Respondent proposed on multiple occasions to facilitate the Complainant’s return to work through proposing a phased return to work over an 8-week period to return to her full-time position, however the Complainant refused to do so. It has also been documented that the occupational health physician reached out to the Complainant to invite her to provider further or updated medical evidence from her own GP/Specialist.

The Respondent has acted in a reasonable and fair manner throughout the process. This is demonstrated through the Respondent’s communication with the Complainant to advise her of the option of applying for the Permanent Health Insurance Scheme with their external provider. The Respondent’s provider did make the decision that the Complainant did not qualify based on the medical evidence from occupational health, however it should be pointed out that this decision was not one of the Respondent but their external insurance provider.

The Respondent had made it clear to the Complainant that from the year 2022, the organisation has additional requirements for the Early Years Provider Centre (EYPC) with a new transition on funding, the core funding and NCS changes. Key to the EYPC is its fulltime advisors who support multiple programmes and offer various support and transactional services to ELC/SAC providers. It would require staff to have business hours of Monday to Friday 9:00am to 5:00pm. There is the need for all staff on board to work full time in conjunction with the new roles budgeted for EYC for 2022

Complaint under Section 27 of the Organisation of Working Time Act, 1997.

In her complaint form, the Complainant alleges that the Respondent has failed to pay

the Complainant her annual leave entitlements accrued from 2022 and 2023 to date.

The Organisation of Working Time Act, 1997 section 20 (1) states,

20.—(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

The Complainant had been on certified sick leave from the beginning of 2022 and was still on uncertified sick leave on the date that this complaint was lodged on 16 June 2023 and therefore could not avail of annual leave.

As the Complainant has since returned to work, she is of course more than welcome to apply for annual leave in line with the Respondent’s annual leave policy taking into consideration organisational requirements should she wish. It should also be noted that since her return from certified sick leave, the Complainant has availed of annual leave and has agreed additional leave days with her manager to be taken at future dates.

Conclusion

The burden of proof rests with the Complainant to show that she has been treated less favourably on the grounds specified. It is the Respondent’s position that the Complainant has failed to provide facts from which it may inferred that discrimination has occurred and has therefore failed to establish a prima facie case of discrimination. It is also the Respondent’s position that the Complainant has been on a significant period of long-term absence and therefore could not apply for annual leave as she was on certified sick leave. It is the Respondent’s position that the Complainant can apply to take annual leave as in line with the organisation’s policy as she has now returned to the workplace. Without prejudice to the preliminary arguments, the Respondent respectfully submits that the claim must fail.

Findings and Conclusions:

Preliminary Issue.

Two complaint forms were received from the complainant; details of these complaint forms are as follows:

Received 31st January 2023 – CA 00054793 – 001 / 002 / 003.

The cognisable period for this complaint is 31st July 2022 until 30th January 2023.

Received 16th June 2023 – CA -00057165 – 001 /002.

The cognisable period for this complaint is 16th December 2022 until 15th June 2023.

There is an overlap of approximately 6 weeks between 16th December 2022 and 30th January 2023.

By way of response the complainant representative has stated:

“By way of response to this submission, the Respondent has acknowledged in their written submission, the subject matter of the Complainant’s outstanding complaints overlaps in many respects with the disputes already heard by the WRC on 7th June 2023. However, this overlapping of issues does not exempt the Complainant from having to submit separate complaint forms for separate cognisable periods.

Whilst the complaints may appear to be the same they are in fact different and what makes them different is the cognisable period. I conclude on this point that the complaints are properly before me.

Substantive Issue.

On 19 September 2022, the Complainant attended the Respondent’s doctor, Dr

McDermott who again confirmed that the Complainant was not to return to full-time

work as a result of her long Covid diagnosis.

On 1 March 2023, the Complainant attended the Respondent’s doctor, Dr McDermott who suggested a phased return to work.

On 25th May 2023 the Complainant attended Dr Kelvin Chong, Navan Road, Medical and Dental, Centric Health. In Dr Chong’s letter to the Respondent’s Doctor, Dr John McDermott, he makes reference to the fact that the Complainant was diagnosed with long covid and was attending the Mater Hospital Covid Clinic. Dr Chong stated that the Complainant was now attending the Infectious Disease Department in St Vincents Hospital to address her diagnosis of long covid. Dr Chong reported that the Complainant’s symptoms included fatigue and tiredness. In this letter Dr Chong also references the fact that the Complainant told him that she had been advised by the Respondent to increase her weekly workload by 5 hours until she returned to work on a full-time basis. In response to this suggestion, Dr Chong clearly states that in his opinion the Complainant would not be able to do this and recommended that the Complainant remain working for 20 hours a week until a later review.

On 15 June 2023, Dr John McDermott wrote to Liz Coyne the HR Business Partner of the Respondent. In this letter, Dr McDermott confirmed the above outlined view of Dr Kelvin Chong in the following terms:

“This is a complex caser but the objective medical evidence (as detailed by her GP) would lean towards a more gradual return to work …. perhaps facilitating Carla with a working @ 20 hours per week for the initial 3-4 months for example …. and then review at that point. I would be happy to discuss”

In July 2023 the respondent eventually accepted the medical opinions they appeared to have been ignoring since September 2021.

Disability/Reasonable Accommodation

The Act does not require an employer to recruit, promote or continue to employ a person who is unable to perform the duties of the job in question. But that proposition is significantly circumscribed in the case of disability, by the obligation which the Act places on employers to provide an employee who has a disability with reasonable accommodation, referred to in the Act as “appropriate measures”. The purpose of providing reasonable accommodation is to enable a person who has a disability :

(1) To have access to employment,

(2) To participate or advance in employment, or

(3) To undergo training.

There is no limitation on the type or category of measures that an employer can be expected to take, provided that they do not involve a disproportionate cost. It can involve effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned. It may, in particular, involve the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration of resources.

Before deciding to dismiss an employee with a disability because of their incapacity, an employer is first obliged to establish the factual position concerning the nature and extent of the employee’s condition and its likely duration. If it is believed that the employee is not capable of performing the duties of their job the employer must consider what, if any, special facilities or appropriate measures could be provided so as to allow the employee to continue in employment (Determination EDA 0359, A Worker v A Health and Fitness Club. This decision of the Labour Court was upheld on appeal and is reported as Humphries v Westwood Club [2004] 15 ELR 296).W

The leading authority on the obligations of an employer to provide reasonable accommodation to an employee with a disability is the decision of the Supreme Court in Nano Nagle School v Daly [2019] IESC 63 and [2019] 30 E.L.R 221. Here the Supreme Court clarified the law as follows:

· The primary obligation of an employer in relation to an employee with a disability is to take appropriate measures, where required in a particular case, to enable the employee to, inter alia, continue employment.

· That duty includes an obligation to consider relieving the employee with a disability of such duties as they cannot perform.

· No distinction should be drawn for that purpose between duties and tasks or between core duties or essential duties.

· The duty to provide reasonable accommodation does not extend to an obligation to create an entirely new job.

· A reorganised job is not necessarily a new job. It is a matter of degree to be decided on the facts of the case.

· A wise employer will consult with the employee with a disability before making decisions about their future employment. However, a failure to consult does not amount to discrimination for the purposes of the Act.

· The employee with a disability must be fully capable of performing the duties of the position, after it is modified by the application of reasonable accommodation, which can include relieving the employee of the requirement to perform certain duties which they cannot perform.

I note para 107 from Nano Nagle School v Daly [2019] IESC 63:

107. Once consultation, or other necessary steps for compliance , have been taken, an employing entity may have to ask itself the ultimate question whether having explored the modes of accommodation , and if, prudently having consulted with an employee, the position , as defined in s.16(1), is, in fact, capable of adaptation so as to accommodate that claimant, and whether the claimant would be capable of performing that function thus adapted. But it is that “position” or job, not another one. If there is a challenge to this decision, this must be assessed objectively by the tribunal vested with the statutory duty of carrying out such an enquiry and also vested with the expertise to carry out such assessment. If, on reasonable accommodation, a claimant is unable to fully undertake the duties attached to the position, then the Act provides there can be no finding of discrimination.

In the instant case the Respondent has adopted the position that the Complainant was not fully fit to perform the duties associated with her role. On 14th March 2022, the complainant attended an occupational health assessment. The report place restrictions on her fitness to work meaning that the complainant was unable to fulfil her contractual duties. The Respondent then states that the proposal that the complainant should return to work over an 8-week period was refused by the complainant.

Looking at the reports from the respondent’s occupational health specialist, these include the following:

11th January 2022 (visit to occupational health specialist) -

“In my opinion, Ms Carla Gahan is medically fit to work reduced (part-time) hours for the next 12 weeks at which stage her progress might be reviewed again”.

14th March 2022 (visit to occupational health specialist) –

“Ms Carla Gahan is continuing to struggle with post-COVID-19 (‘long Covid’)

symptoms. Carla remains under the care of a Specialist in Infectious Diseases

with whom she has a further appointment on 1st April. I am satisfied that (at

best) Carla would still only be capable of/for part-time hours at this juncture. I

will be happy to review Carla in 6-8 weeks’ time at your discretion.”

15th June 2023 (letter from occupational health specialist to respondent)

This is a complex caser but the objective medical evidence (as detailed by her GP) would lean towards a more gradual return to work …. perhaps facilitating Carla with a working @ 20 hours per week for the initial 3-4 months for example …. and then review at that point. I would be happy to discuss.

These reports from the respondent’s own occupational health advisor consistently state that the complainant is fit to work reduced (part-time) hours, they do not state that the complainant is unfit for work. It would appear that the advice from the respondent’s occupational health specialist has, to a very great extent, been ignored by the respondent.

In coming to a conclusion in this matter I find that the complaint as presented under the Employment Equality Act 1998 is well founded.

Section 82 of the Act looks at redress which may be ordered:

82 (1) Subject to this section, the types of redress for which a decision of the Director under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77.

I now order the Respondent to pay compensation to the Complainant in the sum of €30,000 (thirty thousand euro) in full and final settlement of this complaint. Such sum to be paid within 42 days from the date of this decision.

Complaint under Section 27 of the Organisation of Working Time Act, 1997.

The Respondent has included this complaint in their submission, the Complainant’s submission is silent on this matter. The Respondent has stated:

In her complaint form, the Complainant alleges that the Respondent has failed to pay

the Complainant her annual leave entitlements accrued from 2022 and 2023 to date.

The Organisation of Working Time Act, 1997 section 20 (1) states,

20.—(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject—

(a) to the employer taking into account—

(i) the need for the employee to reconcile work and any family responsibilities,

(ii) the opportunities for rest and recreation available to the employee,

I am satisfied that this matter will be addressed in-house now that the complainant has returned to work and will make no decision in relation to this complaint.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

In coming to a conclusion in this matter I find that the complaint as presented under the Employment Equality Act 1998 is well founded.

Dated: 19th November 2025

Workplace Relations Commission Adjudication Officer: Jim Dolan

Key Words: