Complainant

Respondent

Parties

Michael Murphy

Office of the Director of Public Prosecutions

Representatives

Tiernan Lowey BL

Kiwana Ennis BL

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-00055980-001

07/04/2023

In June 2000, the complainant commenced employment with the Office of the Chief State Solicitor.  In October 2002, he moved to the ODPP as a legal executive.  He was promoted the following year to a role as a higher legal executive. 

The ODPP is organised into four divisions:

1.       Prosecuting Support Services Division

2.       Directing Division

3.       Corporate Services Division

4.       Solicitors Division

In April 2017, the complainant qualified as a solicitor and was assigned as a prosecutor in the District Court Section.  The District Court Section sits in the Solicitors Division, which employs around 84 solicitors and is headed by the Chief Prosecution Solicitor, Ms Helena Kiely, and comprises five sections:

1.       Appeals Section

2.       Circuit Court Section

3.       District Court Section

4.       Judicial Review Section

5.       Superior Courts Section

From the respondent’s submission, I learned that prosecutors are assigned a caseload with the objective of providing a service to the Director of Public Prosecutions in all prosecutions in the Dublin Metropolitan District; the Circuit, Central and Special Criminal Courts and the Court of Appeal.  They are also required to deal with judicial review matters arising from prosecutions.

As a prosecutor in the District Court Section, the complainant has two principal functions; firstly, he is required to represent the Director in the District Court and District Court Appeals in criminal prosecutions.  Secondly, he is responsible for compiling books of evidence for matters proceeding on indictment to the trial courts.  He is also expected to participate in and contribute to Section meetings.

On the e-complaint form that he sent to the WRC on April 7th 2023, the complainant said that the District Court Section is extremely busy “with ever increasing workloads and it seems diminishing resources and working in the section is demanding and highly pressurised.” 

The complainant’s disability is alcoholism and the co-morbidities of anxiety and depression associated with the condition.  He claims that the respondent has discriminated against him on the grounds of his disability by,

1.       Failing to promote him;

2.       Failing to provide him with training;

3.       Failing to provide him with reasonable accommodation for his disability;

4.       Failing to take his disability into account in the context of his conditions of employment;

5.       Victimising him.

The complaint of victimisation is considered separately in the decision under reference number ADJ-00048387.

In January / February 2019, the complainant went for treatment in a five-week residential programme.  He believes that, until he took time off for treatment, his employer was not aware that he had a problem with alcohol.  When he returned to work in February 2019, he said that he was open about his condition.  He feels that since then, he has been treated differently compared to other staff.

Describing the difference in treatment, the complainant said that there are anomalies in his workload compared to that of his colleagues.  He said that he receives instructions from junior staff dealing with more serious files assigned to them, which he finds humiliating.  He feels “frozen out” at work.  He is not asked to take on administrative work or to serve on committees, assignments that could contribute towards promotion. 

On April 7th 2023, the complainant submitted this complaint of discrimination on the ground of disability to the WRC.  In the narrative of the e-complaint form, he gave a number of examples of why he feels that he has been treated differently to his colleagues:

By April 2023, the complainant had been in the District Court Section for nearly five years and, from the date he commenced with the ODPP in 2000, he had worked in three other divisions.  He claims that if files are distributed on the basis of ability, experience and availability, it seems unlikely that, in the previous five years, he would not have been assigned a file returnable to the Central Criminal Court, but he has only ever been assigned one book of evidence that was not returnable to the Circuit Criminal Court.  The complainant would like to use his experience to assist the ODPP to produce books of evidence for the Central Criminal Court and to broaden the variety of his workload.

Since he submitted a request for a transfer in February 2021, and, up until the date of his submission to the WRC on April 7th 2023, the complainant said that seven solicitors have been transferred from the District Court Section.  in his submission for the hearing, he provided details of each case where an employee transferred out of the Section.

The complainant is aware of a colleague who has a medical condition which is exacerbated by stress.  He said that a transfer is being arranged for that person to a section of their choice and their court duties have been reduced.  The complainant also has a condition that is affected by stress and he said that it is a fact of life that high pressure work situations will always carry a higher risk for him compared to others.  He said that what is striking is the lack of professional curiosity or concern on the part of management.  No one asked why he wanted a transfer or enquired about how his work environment might affect his recovery.  He is aware of two solicitors who work remotely in the west of Ireland who attend the office two days a week.  He said that these accommodations are for personal circumstances rather than any medical necessity.  He claims that the ODPP can respond to personal circumstances but not in respect of a recognised disability and he believes that the less favourable treatment he has experienced is because of his disability.

Without prejudice to the preliminary issues which I will address before considering the complainant’s case, the respondent denies the allegation of discrimination and the failure to provide reasonable accommodation.  In her opening submission, Ms Ennis said that the respondent’s position is that the complainant has failed to make a connection between the conduct complained about and his disability and that, on the basic facts, he has failed to establish a presumption of discrimination.

Preliminary Issue 1:  The Report of Professor Jo-Hanna Ivers

In response to the initial position adopted by the respondent, that the complainant does not have a disability, he consulted with Professor Jo-Hanna Ivers, Associate Professor in Addiction in the Department of Public Health and Primary Care in the School of Medicine, Trinity College Dublin.  Professor Ivers produced a report titled, “Addiction as a Disability,” which was submitted to the WRC on March 28th 2024 and sent to the respondent’s solicitors on the same day.  On the first day of the hearing, October 30th 2024, Professor Ivers attended as an expert witness to give evidence on the challenges facing employees dealing with addiction and specifically, the challenges facing the complainant and the obligations of an employer in his circumstances.   

In correspondence to the complainant’s solicitors, O’Mara Geraghty McCourt, on November 2nd 2023, Mr Deegan of Byrne Wallace Solicitors conceded that alcoholism is a disability for the purpose of the Employment Equality Act 1998 (“the 1998 Act”).  At the opening of the hearing on October 30th 2024, for the respondent, Ms Ennis objected to Professor Ivers being called as a witness.  She said that witnesses must give evidence about the facts and, while Professor Ivers is an expert on the subject of addiction, she is not an independent expert witness.

Following some discussion on this matter, I decided that I would not hear direct evidence from Professor Ivers and I asked Mr Lowey to include relevant findings from her report in his submissions on behalf of the complainant. 

Preliminary Issue 2:  The Complaint is Outside the Statutory Time Limit

For the respondent, Mr Deegan wrote to the WRC in advance of the hearing and argued that the complainant’s claim of discrimination has been submitted outside the six-month time limit which is set out at s.77(5)(a) of the 1998 Act.  As the complaint was submitted on April 7th 2023, Mr Deegan asserted that the relevant period for consideration of any allegation of discrimination is from October 8th 2022 until April 7th 2023.  He said that the complaint form contains no reference to any alleged act of discrimination that occurred during that period and most of the incidents that the complainant recounted in his complaint form pre-date October 2022. 

Mr Deegan noted that no attempt has been made by the complainant to clarify the basis on which the conduct complained of in the complaint form, which dates back to 2017, could come within scope for consideration under the 1998 Act.  There has been no request to extend the timeframe beyond the cognisable period of six months.

The Complainant’s Response to the Time Limit Issue

In his written submission in response to the time limit issue, Mr Lowey noted that, April 7th 2023 has been identified as the most recent date of discrimination and that the discrimination is ongoing.  He referred to ss 77(5) and (6A) of the 1998 Act.  Section 77(5)(a) addresses a situation where there are a series of acts or omissions on the part of the employer which, while not forming part of a regime, are sufficiently connected so as to form a continuum of discrimination[1].

To this end, Mr Lowey referred to the decision of the former Equality Tribunal in Waldron v North West Health Board[2].  In that case, some of the incidents complained about commenced two and half years prior to the referral of the complaints.  The Tribunal held that it had jurisdiction to deal with all the discriminatory incidents alleged, because the most recent act had occurred within six months from the date of the referral.  While very different in nature compared to the instant case, in accepting jurisdiction in respect of all the incidents, the Equality Officer held that,

“… the three alleged incidents appear to be closely related given that they arise from issues between the same two employees over a continuous period and involve discrimination on the same grounds, namely, marital and family status.  Having regard to section 77(5) of the 1998 Act I am satisfied that the final incident is the most recent occurrence of the alleged acts of discrimination for which the complainant is seeking redress and I have jurisdiction to investigate all three issues referred by the complainant.”

Mr Lowey submitted that the decision in Waldron permitted distinct incidents and acts to be adjudicated upon, provided the acts were related and arose on the same protected ground.  This approach is consistent with the later judgment of the High Court in Louth VEC v The Equality Tribunal[3], where Mr Justice McGovern took account of the fact that, although the alleged acts of discrimination extended over a lengthy period, they were all on the same ground of discrimination, being that of sexual orientation.  This finding was upheld on appeal to the Supreme Court[4].

In the instant case, the complainant argues that he has identified a series of acts or omissions constituting discrimination over an extended period.

Section 77(6A) pertains to a single act extending over a period of time and so is treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on a complainant.  Mr Lowey referred to the decision of the Labour Court in 2018 in Occipital v Hayes[5] where it was held that the failure to accommodate an employee in respect of a disability may constitute a practice within the meaning of section 77(6A) such that the time period for bringing such complaints ceases only six months post the cessation of the refusal to provide reasonable accommodation or six months post the end of employment.

Mr Lowey submitted that the respondent’s failure to provide reasonable accommodation for the complainant’s disability constitutes ongoing and continuing discrimination, capable of consideration under both sections 77(5)(a) and 77(6A) of the 1998 Act.

Findings on the Time Limit Issue

Section 77(5)(a) of the 1998 Act sets out the time limit for submission of a complaint of discrimination:

(a) 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.

Subsection (5)(b) addresses the potential for an extension of the time limit, but we are not concerned with that matter. 

Section 77(6A) addresses discrimination that extends over a period of time:

(6A) For the purposes of this section -

(a) discrimination or victimisation occurs -

(i) if the act constituting it extends over a period, at the end of the period[.]

Subsections (ii) and (iii) and (b) and (c) of this section are not relevant to the consideration of this complaint.

The nature of the discrimination alleged by the complainant is not confined to one event or to a succession of incidents.  While he claims that he has been treated less favourably than others with regard to certain aspects of his job, the substance of his complaint is that, unlike many of his colleagues, he has not been transferred out of the District Court Section, where he moved in 2017 when he qualified as a solicitor.  He claims that he hasn’t been allocated books of evidence related to murder and rape cases and that the confinement of his work to books of evidence for the Circuit Court has stymied his prospects for promotion.

The complainant claims that April 7th 2023 is the most recent date on which discrimination occurred in respect of his employer’s failure to transfer him to a different division and to provide him with reasonable accommodation for his disability.  He claims therefore, that, since he applied for a transfer in February 2021, the discrimination has been continuing and is ongoing.

In its findings on the issue of the time limit in Occipital v Hayes, cited by Mr Lowey, the Labour Court noted the differentiation between ss.77(5)(a) and 77(6A), as it was set out in the Supreme Court judgement in Louth VEC v The Equality Tribunal. We know that s.77(5)(a) deals with separate acts or omissions which are sufficiently connected to constitute a continuum.

In Occipital, the complainant, Mr Hayes, had asked to be moved from his job as a “de-kitter” to lighter, hygiene-related work that he had done previously.  The Court accepted that the failure of the respondent to accommodate him by allowing him to resume hygiene-related duties “constituted a practice within the meaning ascribed to that notion by section 77(6A) of the Act…”  In the case under consideration, the complainant claims that his requests to move from the District Court Section were met with inaction on the part of the respondent.  In this regard, his circumstances are similar to those of the complainant in Occipital. 

In documents he submitted in advance of the hearing, the complainant referred to a direction from his line manager in August 2022 that all books of evidence were to be submitted electronically.  He found this to be a daunting prospect and, on September 29th, he sent an email to the head of the Solicitors Division, Ms Kiely, to ask her if there was any response to his previous request for a transfer.  Ms Kiely replied the following day and advised him to set out where he would like to transfer to and the sections he worked in previously.  She advised him to copy the HR department, who maintain a list of transfer requests.  On October 3rd, the complainant sent an email to Ms Pamela O’Connor in the HR department and copied Ms Kiely.  He said,

“I suppose the only place I am really interested in transferring to is the Directing Division.

“I have worked everywhere else apart from the International Unit, Policy and Research and the Financial Unit.  The latter is really just the Circuit Court.”

Just over six months later, on April 7th 2023, when he submitted this complaint to the WRC, the complainant remained in the District Court Section and had not been transferred.  By that time, he had been assigned a book of evidence returnable to the Central Criminal Court, but not a murder case.  It is my view that the failure of the respondent to address the complainant’s request for a transfer, or for work that he claims could contribute to him being promoted was an ongoing failure which extended from February 2021 until he submitted this complaint to the WRC on April 7th 2023.

Taking my authority from the findings of the Labour Court in Occipital v Hayes, and, relying on the provision of s.77(6A) of the 1998 Act, I have decided that the facts of the complainant’s case are sufficient for me to conclude that the cognizable period for this aspect of his complaint extends until the date that he submitted this complaint to the WRC on April 7th 2023. 

2019 Salary Increment

In January / February 2019, the complainant attended a five-week residential programme for the treatment of alcoholism.  In April that year, he learned that his salary increment, due in March, had been withheld due to his absences from work.  When he had no success with the HR department in his efforts to overturn that decision, he instructed a solicitor to advocate on his behalf and the decision not to pay him the increment was overturned.  He claims that, because he had to engage a solicitor and pay the costs, he has been treated less favourably because of his disability.

Request for a Transfer

Having been qualified for four years, in February 2021, the complainant applied for a promotion to the role of Senior Prosecution Solicitor but he wasn’t shortlisted for an interview.  In her capacity as head of the Solicitors Division, the complainant wrote to Ms Helena Kiely on February 11th 2021, and asked about a move from the District Court Section.

In April 2021, one of the complainant’s colleagues was promoted and transferred to the Directing Division.  Around the same time, a new recruit who qualified in the same year as the complainant, was assigned to the Directing Division.

Assignment of Books of Evidence

In June 2021, a new recruit joined the ODPP from having spent a number of years as a solicitor in criminal defence firms.  In the months after her commencement, she was assigned murder files.  A murder file has never been assigned to the complainant.

Mentoring

In November 2021, the complainant’s offer to take on extra responsibilities related to data protection work was declined.  Around this time, a new recruit joined the District Court Section and shared an office with the complainant.  Although he expected to be asked to act as a mentor to this new hire, another person was assigned to this task.  This person has also been assigned to work on murder cases.

Comments by a Member of Management

In December 2021, the complainant heard from a colleague that a manager in the District Court Section had made remarks about his mental health.  On December 23rd, the complainant sent the manager an email asking him to desist.  He didn’t get a reply and he said that the person who is alleged to have made the remarks has stopped speaking to him, except when it is necessary to do so for work-related matters.

2018 PMDS

In January 2022, the complainant sought to challenge a remark included in his Performance Management and Development System (PMDS) review for 2018.  Mr Ray Briscoe was the complainant’s line manager at the time.  In the 2018 review document, Mr Briscoe wrote:

“Michael has had a difficult end to the year 2018.  While certain work issues presented in the last number of months I am confident that with Michael’s positive attitude combined with the proper management supports in place, that Michael will continue in his positive development.  Michael has developed to cover District Court hearings in all courts.

While the District Court can be challenging in a more direct manner than other sections in the office I firmly believe that Michael is well suited to his role and I understand that he is enjoying his time in the District Court.  I fully expect Michael to fulfil his real potential in the next year.”

The complainant claims that these remarks are unfair and misleading and he said that no issues were brought to his attention that could have led to the comment in the first paragraph above.  The complainant’s request to challenge this remark was declined because he signed his agreement to the PMDS review in March 2019.

2021 PMDS

In the “Feedback” section of his 2021 PMDS review which he signed in February 2022, the complainant expressed concerns about differences in treatment between him and some of his colleagues:

1.       He said that there were disparities in the distribution of tasks with the result that he didn’t get the same opportunities as others.

2.       In his time in the District Court Section, he was only ever assigned one book of evidence that was not returnable to the Circuit Criminal Court.  All the files assigned to him are returnable to the Circuit Court.

3.       He said that the cases assigned to him are “homogenous and repetitive” and that he is deprived of the opportunity for progression.

4.       He had never been assigned a murder file or asked if he would like to work on a murder file.

5.       He said that, if all the files are assigned on the basis of ability, it was unlikely that he would not be assigned a file that is returnable to the Central Criminal Court.  He referred to one exception, a file on a rape case he had been assigned a number of years previously, which he said, he completed without incident.

6.       Unlike some of his colleagues with the same length of service, he had never been asked to be a mentor to a new recruit.

7.       He expressed an interest in doing an online course in legislative drafting, but his request was refused because he had previously done a course in the subject.

8.       He volunteered to update the District Court manual, but he got no response to his offer.

9.       He was not asked to contribute at a section meeting on a case with which he had had significant involvement.

10.   He concluded his remarks on his 2021 PMDS review by saying that he didn’t want to continue to work in a section “where I feel I am not progressing and not fully part of the work of the section.”  He said that the lack of variety and depth of experience in the District Court Section would hamper his prospects for promotion and, for this reason, he said that a change was imperative.

In his final comments, the complainant remarked that his workload in 2021 had “at times been overwhelming,” but he said that by focussing on the work in hand, he managed to get through it.

In response, his manager wrote:

“Mick is a valued member of the District Court team.  He has worked well over the last year to manage a significant workload, which has been overwhelming at times.  I have spoken to Mick about setting goals and creating opportunities for the future in the section.  Additional work, over and above core duties is assigned in the section on the basis of capacity to complete additional work and not just experience or ability.  Additional work is also assigned on the basis of expressions of interest.  Mick recently mentioned that he had done submissions about EU regulations and the concentrations of THC in prescribed cannabis products.  That would be an interesting area for him to contribute to the knowledge of his colleagues.  Mick was unable to pursue the course on legislative drafting in the Kings Inns due to Covid and I would recommend that he resubmit his request for approval for that or similar courses now that Covid restrictions have eased.”

The complainant felt that this response was unsatisfactory, and he looked for a review.  Six months later, he said that he received a reply from the HR department informing him that he could dispute the rating he received, but not the narrative.

In March 2022, one of the complainant’s colleagues returned from leave and moved to the Central Criminal Court Section.  In April, another colleague who had been promoted two years previously moved to the Judicial Review Section.  A prosecution solicitor from the District Court Section transferred to the Directing Division.  Also, that April, the complainant was asked to mentor a colleague who qualified as a solicitor in 2018.  By 12 months later, this colleague had been assigned to work on a murder file.

From April 2022 until May 2024, the complainant reported to Mr Declan Keating, senior principal prosecutor.  Mr Keating attended the hearing of this complaint.  Since May 2024, he reports to a new manager on a temporary basis.

In June 2022, a solicitor in the District Court Section was transferred to the Financial Crime Unit.  This colleague had had a short stay in the District Court Section, but had worked on murder cases.  Two new joiners in the District Court Section were assigned murder cases.  In August, a prosecution solicitor was transferred to the Financial Crime Unit.  This solicitor had been assigned to work on murder files.

In August, Mr Keating, who was the complainant’s line manager at the time, instructed that all books of evidence were to be submitted electronically.  The complainant said that he found this very daunting and he felt that he would have difficulty keeping up with the volume of work and the court listings post-Covid 19.  In September, he contacted the HR department about his previous request for a transfer. 

In November 2022, the complainant felt completely overwhelmed and unable to control his workload.  His doctor suggested that he should take time off work and he was absent for five weeks.  In January 2023, the complainant heard about a colleague who sought a transfer from the District Court Section whose request was treated differently to his.  On April 7th 2023, he submitted this complaint to the WRC.

Submission in Relation to Reasonable Accommodation

Under this heading, Lowey referred to s.16 of the 1998 Act, and the obligation on employers to provide reasonable accommodation to employees with disabilities, by providing special treatment of facilities which would make them fully competent to undertake their duties.  The failure to provide reasonable accommodation is considered to be discriminatory.  Mr Lowey listed the various forms of support considered by adjudication officers and the Labour Court as appropriate measures to support a person with a disability to be competent at work.  These measures include adjustments to working hours, relieving the disabled employee of certain tasks and distributing those tasks to others, allowing the employee to work partially from home, altering the work environment or providing tools or equipment to enable the employee to do the tasks they might be otherwise unable to do.

Mr Lowey referred to the decision of the Supreme Court in Nano Nagle School v Marie Daly[6], which, he submitted, “emphatically reasserted the obligation on employers to consider appropriate measures and to take such measures to enable employees to return to work, unless they impose a disproportionate burden.”  I will examine the implications of this important decision in the section below under the heading, “Findings and Conclusions.”  Mr Lowey submitted that the making of reasonable accommodation cannot be rejected out of hand without a consideration of what measures might render an employee capable of undertaking his duties and how much such measures would cost.   

Mr Lowey said that it is not the responsibility of an employee to design a suite of measures that would enable him to work as normal; rather s.16 of the 1998 Act places the obligation squarely on the employer to consider what measures might be appropriate for the employee, and then to go on to consider if the measures would impose a disproportionate burden.  In his judgement in Nano Nagle, McMenamin J described this as “a mandatory primary duty” of the employer. 

Mr Lowey referred to the publication, Employment Equality Law[7] by Bolger, Bruton and Kimber where, at paragraph 107, the authors state that reasonable accommodation,

“…requires employers to generally take a proactive approach to locating suitable measures with which an individual with a disability can be accommodated in the workplace.  In this regard, it requires an individualised approach by employers.  It allows adjustments to be made in order that disabled employees may be deemed capable of performing the essential tasks of a particular job, but if the individual cannot do so with the aid of reasonable adjustments or if the adjustments are simply too expensive for the employer, then the requirement is not necessary.  It involves the person being involved in an interactive dialogue with the employer to search for the right kind of accommodation needed in the overall circumstances of the case.”

Mr Lowey referred to the original determination of the Labour Court in A Health and Fitness Club and A Worker[8].  The worker was dismissed when her employer concluded that her diagnosis of anorexia made her unsuitable to continue in her job as a childcare assistant.  The Labour Court held that she was discriminated against when she was dismissed wholly or mainly because of her disability.  This finding was upheld on appeal to the Circuit Court in Humphreys v Westwood Fitness Club[9].  The key principle established in Westwood is the requirement of an employer to make a proper enquiry about the needs of an employee with a disability before making a decision that might be to their detriment.  In the initial determination, the Labour Court held that,

“The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case.  At a minimum, however, an employer, should ensure that he or she is in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.

“In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration.  This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

“Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable.  The Section requires that the cost of such special treatment or facilities must also be considered.  Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

“Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

Mr Lowey stated that, while there is no legal requirement for an employer to consult with an employee regarding the type of reasonable accommodation they require, or how it is to be provided, he referred to the remarks of McMenamin J in his decision in Nano Nagle, where he disagreed with the Court of Appeal’s conclusion that the process of consultation and enquiry demanded by the Labour Court in Westwood was unjustified.  At paragraph 105 of Nano Nagle, McMenamin J stated,

“… I do not go so far as to say that there is a mandatory duty of consultation with an employee in each and every case, the section does not provide for this, still less does it provide for compensation simply for the absence of consultation in an employment situation.  But, even as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the Act.”

While Humphreys v Westwood dealt with the dismissal of the employee, in A Worker (Mr O) and An Employer (No. 1)[10], the Labour Court determined that the worker was discriminated against when his employer failed to allow him to return to work on a phased basis, after he had been in hospital for treatment for a psychiatric illness.  The duty of the employer to make an adequate enquiry about the employee’s illness and the measures needed to support them to return to work were reiterated here.

Mr Lowey submitted that the practical effect of the Westwood test is that it requires an employer to take into account all the relevant evidence to determine the duration and extent of a disability.  When this is done, the onus is on the employer to consider the appropriate measures, treatment or facilities that might support the employee to be capable of performing in their job.  This requires an examination of the costs and obligations as the employer is not expected to be financially over-burdened.

Referring to the decision of the Labour Court in Ms B v A Government Department[11], Mr Lowey said that the duty of the employer to consider appropriate measures to accommodate an employee with a disability is “proactive in nature” and it is therefore not open to the employer to argue that the onus is on the employee to provide details or to advise on measures of reasonable accommodation:

“The duty to provide special treatment or facilities is proactive in nature.  It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability.  In Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566, the EAT for England and Wales considered an appeal from the decision of an Employment Tribunal in which it was held that the obligation imposed on an employer by section 6(1) of the Disability Discrimination Act 1995 (which corresponds to S16 of the Act) included an obligation to carry out a proper assessment of the disabled employee's needs. In the headnote of the report the following statement of the law appears:

"A proper assessment of what is required to eliminate a disabled person's disadvantage is a necessary part of the duty imposed by S.6(1), since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done.  The submission that the tribunal had imposed on the employer an antecedent duty which was a gloss on s.6(1) could not be accepted.  The making of that assessment cannot be separated from the duty imposed by s.6(1), because it is a necessary precondition to the fulfilment of that duty and therefore part of it…"

Mr Lowey referred to several other precedents where this requirement of the employer to consult with an employee regarding their particular needs and to be fully informed about the effect of a disability was considered to be essential to support an employee with a disability to continue to be productive in the workplace[12].  He said that the jurisprudence makes it apparent that there is an obligation on the respondent to conduct itself in a proactive manner by making adequate enquires and being in possession of all the material information concerning the needs of the complainant.  Measures to be considered include altering working hours, shifts and patterns, changing the work location, changing the duties and tasks that make up the employee’s role and, if necessary, redistributing the tasks that the employee cannot perform to other employees.  The employee must be fully engaged in the entire process and must have the right to present information and make representations and suggestions for consideration by the respondent.

Concluding Remarks

Mr Lowey concluded his submission for the complainant by saying that, on the facts of this case, the respondent has failed demonstrably to meet its duty under s.16 of the EE Act and is continuing to so fail.  This has resulted in the complainant being overlooked for promotion and training.  The respondent talked about treating the complainant the same as everyone else, whereas, Mr Lowey argued, he is not the same, and he should have been afforded more favourable treatment.  He said that this approach has continued to stigmatise the complainant, who, on the date of this hearing on March 25th 2025, had still not moved from the District Court Section.

Mr Lowey remarked that the complainant has been candid, frank and honest in his evidence about what it’s like to suffer from alcoholism.  He said that the respondent made no effort to investigate if his disability had an impact on his work, and “responded lamentably” to his needs.  He said that there was “no joined-up thinking” between management and HR and the pattern since the complainant declared that he is an alcoholic was to “keep it confidential.”  Mr Lowey described the respondent as “burying their heads in the sand.”  He said that there is no evidence that the complainant asked for his disability to be kept confidential.

The complainant’s request for a transfer were treated as simple mobility requests; whereas, Mr Lowey submitted, more favourable treatment must be afforded to someone with a disability.  Mr Loewy said that “it beggars belief” that Mr Briscoe didn’t notify the HR department when the complainant returned from the residential treatment programme.

Mr Lowey said that an employee is not required to indicate that they are seeking reasonable accommodation for their disability.  In this regard, he referred to the opinion of the Advocate General of the Court of Justice of the EU in Carlos Enrique Ruiz Conejero v Ferroser Servicios Auxiliares SA and Ministerio Fiscal[13] of Spain.  Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation was transposed into Irish law by the Employment Equality Act 2004 and resulted in the amendment of s.16 of the EE Act and the inclusion of a specific provision on reasonable accommodation.  At paragraph 36 of his Opinion in Ruiz Conejero, the Advocate General states that an employer who is not aware that an employee has a disability cannot be expected to do anything with regard to reasonable accommodation.  At paragraph 37 however, he stated:

“It is plain that that obligation will be triggered when the employee has told the employee of his disability and its extent, together with all relevant surrounding circumstances.  Provided no disproportionate burden is placed upon him, the employer will then be in a position to take steps to assist the employee and to provide reasonable accommodation.  By virtue of those measures, the employee will have been assimilated into the workplace.”

Mr Lowey asked me to find that, on the facts, the complainant has made out a prima facie case that he was discriminated against by the respondent.  He argued that the inference of discrimination cannot be rebutted and he asked me to find that the complaint is well founded.

Between January 4th and February 25th 2019, the complainant went on sick leave.  He did not disclose the cause of his sickness and, due to the length of his absence, he was referred by the HR department for an examination by the chief medical officer (CMO).

On February 26th 2019, when he was back at work, the complainant informed his then manager, Mr Briscoe, that he had been treated for alcoholism in a residential centre.  Mr Briscoe gave evidence of this at the hearing and said that he expressed his support and advised the complainant of support available to employees with addiction problems.

On March 6th 2019, an occupational health nurse from the CMO’s office wrote to the HR Department as follows:

“Mr Murphy attended for an appointment in the CMO's Office.  A detailed medical history was conducted.  This included assessing current and past medical history, current medical treatments, activities of daily living and social history.  I have also reviewed the case referral form with Mr Murphy.

“Mr Murphy sought appropriate medical treatment for his condition.  He is well now and I would expect he will continue likewise.  Mr Murphy outlined to me he is back at work since February 25th, adding he has had no issues since his return and does not require any workplace accommodations.

“I thus advise Mr Murphy is medically fit for work.

“I have not arranged to see Mr Murphy for a review appointment.”

In her submission, Ms Ennis said that the complainant did not ask for reasonable accommodation when he was seen by the occupational health nurse in February 2019 and, since that date, he has not made a request for reasonable accommodation.

Ms Ennis addressed the issues raised by the complainant when he submitted his complaint to the WRC in April 2023.

2018 PMDS Review

Although he signed his 2018 review form on March 25th 2019, in January 2022, the complainant challenged his manager’s comments on the 2018 form.  The comments of a manager cannot be challenged on a PMDS form and once a form is signed, the rating is not open to challenge.

2019 Increment

The complainant’s increment, due in March 2019, was deferred due to his absence on sick leave from January 4th until February 25th 2019.  When he challenged this decision, it was reversed and, in January 2020, he received his full increment, back to Mach 2019.

Request for a Transfer

On February 11th 2021, the complainant wrote to the chief prosecution solicitor, Ms Helena Kiely, and said that he was interested in a transfer out of the District Court Section.  He expressed a desire to move to a section he hadn’t worked in previously, and he acknowledged that this narrowed his options.  He suggested a transfer to the International Unit.  Ms Kiely replied and told the complainant that the next moves would be to the Sexual Offences Unit.  The complainant replied on February 14th 2021.  He did not express any interest in moving to the Sexual Offences Unit, but said that, as well as the International Unit, he would be open to a move to the Directing Division, the Victims Liaison Unit or Prosecution Policy and Research.

On September 29th 2022, the complainant wrote again to Ms Kiely, seeking an update on his request for a transfer.  Ms Kiely replied and asked him to confirm where he would like to transfer to and about where he had worked already.  The complainant replied and said that the only place he was interested in transferring to was the Directing Division.  In a reply from a member of the HR department, he was informed that his preference in this regard was noted.

In her submission, Ms Ennis said that the complainant’s request for a transfer has been dealt with in the same manner as any other employee’s request.  Some staff members have waited longer than the complainant for a transfer, and others have been transferred without having requested a move.  The principles set out in the respondent’s Strategic Work Force Planning (SWFP) Guiding Principles for the Allocation of Resources directs how staff resources are utilised and requests for transfers to specific areas cannot always be accommodated.

Alleged Comments by a Member of Management

The respondent is unaware of the complainant’s allegation that a member of management made disparaging remarks about his mental health.

2021 PMDS Review

In his 2021 review, which he submitted in February 2022, the complainant raised a number of concerns about his job, and particularly, his sense that he was treated differently to others in the District Court Section.  In a telephone conversation in March 2022, the complainant’s then manager told the complainant that he wasn’t treated differently to anyone else and that additional work was assigned based on workload.  The manager explained to the complainant that completing his existing workload was important before he looked for extra work and he was advised that he could volunteer for additional work and that regularly attending the section meetings would increase his visibility in the section.

The complainant was unhappy with his manager’s response to his concerns and he sought a review.  In August 2022, he was informed by a member of the HR department that, in accordance with the Civil Service Conciliation and Arbitration Scheme, General Council Report 1452, he could seek a review of his rating, which was satisfactory, but not his manager’s comments.  Unlike his experience of his 2018 PMDS review, on this occasion, he was permitted to seek a review of his rating, because he had done so prior to signing the review document.

Assignment of Books of Evidence

The complainant claims he has been treated differently to others by not being assigned a book of evidence file that is not returnable to the Circuit Court and by never having been assigned a book of evidence in a murder case.

The respondent’s position is that the complainant has not been treated differently to others in this regard.  The District Court Section deals with only a small number of books of evidence files returnable to the Central Criminal Court.  These are allocated to the prosecutors in a relatively even basis.  Ms Ennis included the number of Criminal Court files dealt with in the District Court Section and the breakdown of the allocation to the staff in the Section from 2019 to 2023.

Mentoring

Although he claims that he was never asked to mentor a member of staff, in April 2022, Mr Keating assigned the complainant as a mentor to a newly recruited solicitor.

Legislative Drafting Course

The complainant claims that his application to do an online course in legislative drafting was refused on the basis that he had previously done a course in that area.

In Ms Ennis’s submission, she said that the complainant was approved to attend a Policy Development and Parliamentary Drafting course in September 2020.  In February 2021, 19 of the respondent’s solicitors expressed an interest in a course in legislative drafting.  Only one of these was nominated to attend, a solicitor from the Directing Division.  None of the solicitors in the District Court Section were selected because the Chief Prosecution Solicitor, Ms Kiely decided that she would not nominate anyone from her Division because the course was scheduled over one week in the UK and was not entirely relevant to the work of the Division.

Offer to Update the District Court Manual

Due to the workload in the Section and the number of new staff, updating the District Court Manual wasn’t a priority when the complainant offered to update it.  The work of updating the manual has since been assigned to a Deputy Head of Section.

Contribution to Section Meetings

Although he had been involved in a judicial review case, the complainant claimed that he wasn’t asked to contribute to a section meeting where judicial review updates was on the agenda.

Declan Keating was the complainant’s manager between April 2022 and May 2024 and, before each section meeting, he asked prosecutors if they wanted to raise anything of particular interest related to their work.  Copies of these requests which were sent to staff by email were included in the respondent’s documents for the hearing.  The complainant didn’t offer to make a contribution on judicial review updates.

Request for Reasonable Accommodation

The complainant is critical of the respondent for not having made enquiries about why he wanted a transfer from the District Court Section or about how his work environment might affect his recovery.  In his submission, he suggested that it was “striking” that management had an “absolute lack of any professional curiosity or concern” regarding his transfer request.

The respondent’s position is that the complainant has not identified any requests for reasonable accommodation.  Nor has he identified any refusal by the respondent to grant such requests.  The letter from the office of the CMO provided to the HR department after his residential treatment indicates that the complainant stated that he did “not require any workplace accommodation” at that time.  He never indicated that that situation had changed.  Ms Ennis said that transfer requests are routine administrative matters and the request for a transfer does not give rise to an inference that there could be a requirement for reasonable accommodation.  Applicants for transfers are not required to state why they want to transfer and the allocation of staffing to divisions is guided by the respondent’s SWFP Guiding Principles for the Allocation of Resources.

No Prima Facie Case of Discrimination

It is the respondent’s position that the complainant has failed to make out a prima facie case of discrimination or that they failed to provide reasonable accommodation.

Regarding the complaint of discrimination, Ms Ennis said that the only outline of the facts being relied upon by the complainant is contained in his complaint form.  His submission contains no details about the alleged facts.  While the complainant outlined his perception of his employment history from 2017, Ms Ennis submitted that,

1.       His claims are entirely based on subjective opinions and not grounded on objective evidence.  She asserted that the complainant has not identified a comparator by way of comparing his treatment in a specific situation with that of another individual without a disability or with a different disability.

2.       She argued that his claim of discrimination is “exclusively a speculative one.”

3.       Thirdly, Ms Ennis submitted that the complainant has failed to demonstrate a link between the conduct complained about and his disability.  The absence of such a link means that the complainant has not established a prima facie case of discrimination.    

Regarding the complaint that the respondent has failed to provide the complainant with reasonable accommodation, Ms Ennis said that no details have been presented to support this claim.  The complainant has not identified when he made a request for reasonable accommodation nor has he identified the refusal of the respondent to accommodate any such requests.  The only medical evidence on the issue is the report from the CMO on March 6th 2019, confirming that the complainant did not require any reasonable accommodation at that time.  Ms Ennis submitted that the complainant has not make out a prima facie case that the respondent has failed to provide reasonable accommodation.    

Concluding Remarks

Ms Ennis closed her submission for the respondent saying that it is acknowledged that the complainant suffers from alcoholism and that his employer has no ill will towards him in this regard. 

Considering the complainant’s claim that he was not provided with reasonable accommodation, Ms Ennis said that the complainant never asked for reasonable accommodation.  She said that this is important because it explains why the employer didn’t know that the complainant needed certain accommodations to facilitate him to do his job.  Not all employees with a disability will need support and it is a matter for the employee to let their employer know what it required.

The complainant relies on the email he sent to the chief prosecution solicitor, Ms Kiely, in February 2021, two years after he completed the residential treatment programme, to indicate that he was looking for reasonable accommodation.  In the previous two years, there had been no issues with regard to the complainant’s performance at work, and no issues of concern for his employer.

Ms Ennis referred to the request made by the complainant in his email to Ms Kiely on February 11th 2021.  He said that he was interested in a move because he felt that “the atmosphere in the section at the moment isn’t conducive to dealing with the already significant pressure we are experiencing.”  He went on to say that he would like to go to a section he hadn’t worked in before, and he suggested the International Unit.  Ms Ennis said that, to be a request for reasonable accommodation, the complainant needed to have indicated that the reason for the move was related to a concern about his health.  Ms Ennis said that it is not fair to interpret this email as a request for reasonable accommodation.

Again in September 2022, the complainant raised his desire for a move from the District Court Section.  He did not ask for reasonable accommodation, but referred back to his email of February 2021 and asked, “What is the current position with this?”

Ms Ennis referred to s.16(3) of the EE Act, and specifically s.16(3)(b) which provides that,

The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability -

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

Ms Ennis said that this section is about “what the employee needs, and not what they want, to perform their duties.”  She said that the complainant was performing his job satisfactorily.  He mentioned sleeplessness and stress, but he was doing his job.  He didn’t say that he needed something to help him to do his job.

Ms Ennis referred to the complainant’s three lengthy periods of absences over a six-year period since 2019:

January 4th until February 25th 2019 for the residential treatment programme;

November 7th until December 14th 2022, due to stress;

November 17th 2023 until March 2024, which post-dates this complaint.

Ms Ennis said that some employees may have been subjected to a performance review as a result of this level of absenteeism, or the disciplinary process may have been triggered.  This didn’t happen.  He has not suffered any detriment arising from his absences.

Ms Ennis said that it is acceptable to want to move to a different section, but this is not the same as not being able to do the job because of the absence of reasonable accommodation.  At the meeting with the occupational health nurse after he completed the residential programme, Ms Ennis reminded me that the complainant told her that he didn’t need any accommodation for his disability.

Under the heading of his complaint of discrimination, Ms Ennis submitted that the complainant has not identified how he was treated less favourably compared to any other employee.  He raised concerns about the comments of his manager in his 2018 PMDS review and he alleged that Mr Briscoe made these comments “to cover himself.”  The review itself was satisfactory, so the remarks had no bearing on the end result of the PMDS.

Ms Ennis referred to the withholding of the 2019 increment which was resolved when Ms Kiely was notified that the complainant’s absence was for treatment for alcoholism.

Ms Ennis referred to the complainant’s request for more complex work involving the preparation of books of evidence for the CCC and specifically, for murder books.  She said that half of the prosecuting solicitors in the District Court Section are not assigned murder books.  In April 2022, following a request to Declan Keating, the complainant was appointed as a mentor a new recruit.

Ms Ennis referred to the course in legislative drafting, for which 19 people expressed an interest in attending and one was selected.  She said that, while the complainant volunteered to update the District Court Manual, that job was never done.  He complained that he wasn’t asked to contribute at District Court meetings; however, Ms Ennis referred to the emails sent to all staff in the Section to ask them if they had a contribution to make at meetings.  In January 2021, when he wasn’t successful in his application for a role as a senior prosecutor, he was less than four years qualified, and others were more qualified for the role.

Ms Ennis closed her submission by saying that the complainant has failed to make out a prima facie case to support his claims.  She reiterated the issue of the time limit, and the fact that I must consider the incidents alleged to have occurred in the six months between October 8th 2022 until April 7th 2023, when this complaint was submitted to the WRC.

Direct Evidence of the Complainant

The complainant gave evidence over two days, beginning on October 30th 2024, with his direct evidence.  He was then cross-examined by Ms Ennis on March 24th 2025.

Commencing his direct evidence, the complainant said that he has worked in most of the divisions in the ODPP, apart from the International Division, the Directing Division, Financial Crime and Knowledge Management and Legal Research.  He said that the District Court Section, where he works, is staffed by around 24 solicitors, plus administrative staff.  Around 90 solicitors work in the Solicitors Divsision and the ODPP as a whole employs around 280 people.

The complainant said that he understood that, when he qualified as a solicitor in 2017, he understood that he would be transferred to the District Court Section.  He said that when he joined the Section at first, he was overwhelmed.  He was working on advocacy, books of evidence and Garda Queries.  He suffered from anxiety and he took two weeks off.  He submitted a medical certificate which stated that he was absent because of anxiety.

Mr Lowey asked the complainant how he knew that he suffered from alcoholism.  The complainant said that in 2012, he was diagnosed with depression and anxiety.  He said that he was in denial about his dependence on alcohol.  He said that he had debilitating anxiety all the time.  He said that the work in the District Court is challenging and he wouldn’t be able to sleep the night before a court hearing.  He would wake at 5.30am and work on the files.

The complainant said that he went along with the work because he wanted to get the experience.  He didn’t think that he showed any outward signs of a problem with alcohol.  He said that he shared his office with someone familiar with alcoholism, but his addiction wasn’t noticed.  He said that he never had complaints about his work.  He was a binge drinker and he wouldn’t drink all day for a long time; then there would be a week of heavy drinking.

The complainant said that he is a better employee now.  Previously, he said that it would have taken him longer to get things done.

The complainant said that a feature of alcoholism is low self-esteem.  Every time he’s in a new situation, he said that he feels that he’s not good enough.

Asked by Mr Lowey what it was that brought him to the decision to go into the residential programme, the complainant said that nothing else had worked.  Life had become difficult, things weren’t good at home, he was avoiding his children and he was constantly anxious.  He said that he was never suicidal, but his first emotion every day was disappointment that there was another day.  He said that his drinking had become a problem.  He thought, “I’ll have five weeks off and I won’t have to go to court.”  He said that he didn’t think the programme would work, but it was too painful to continue as he was and he decided to “give it a go” on the basis that it might work.

On the programme, the complainant said that he was encouraged to find his voice and express himself.  He said that, with alcoholism, you live seeking approval from others.  He said that resentment is a big issue that must be addressed.

On the programme, the complainant said that he was advised to tell his employer that he had a problem with alcohol.  He said that he had doubts about this.  He had seen an interview on the Late Late Show with a photographer who was open about her addiction and all her bookings for work were cancelled.  He said that he knew the ODPP is conservative.

When he completed the programme, the complainant said that he was advised to take a couple of weeks off at home.  He returned to work on February 25th 2019 and the following day, he told his manager, Ray Briscoe, why he had been absent.  He said that Mr Briscoe was taken aback and said that he had no idea that he had a problem.  He said that “saying it to Ray was one thing,” but he knew he would tell everyone.  He thought, “a secret has power” and he decided not to give people that power and he told people himself.   He said that he brought it into conversations with his colleagues.

The complainant said that he didn’t ask Mr Briscoe to do anything.

Mr Lowey referred to the complainant’s concern about his PMDS for 2018.  The complainant said that, while Mr Briscoe referred to him having a difficult end to 2018, no issues were ever brought to his attention and Mr Briscoe didn’t raise an issue about his work.  In his mid-year assessment in 2018, his performance was described as “glowing.”  He said that he signed the end of year review for 2018 in March 2019, but he said that he regretted signing it.  He said that, in respect of Mr Briscoe’s comments on the PMDS in March 2019, he thinks that it was “a way of covering himself.”  He said that Mr Briscoe may have felt back because he didn’t realise he was an alcoholic and he tried to “cover up” for that lack of knowledge.

Mr Lowey referred to the referral form sent by the respondent’s HR department to the office of the CMO on February 12th 2019.  A copy of this document was included in the respondent’s paperwork for the hearing.  The complainant said that he wasn’t aware of this referral at the time.  He got a letter in the post asking him to attend an examination by the CMO.  He said that his meeting with the occupational nurse in the CMO’s office was brief.  She told the complainant that anything he told her would be treated confidentially.  He told her that he had been in a residential treatment programme for alcoholism and that he was back at work.  He didn’t recall the nurse asking him any questions about his work.  He was only back in work a week or two when he met the nurse and he presumes that he didn’t need workplace accommodation.  He said that he thinks the nurse asked him if he needed any specific accommodation and he said, “I don’t think so.”

In the weeks after treatment, the complainant said that there is a sense of serenity.  He said that he felt at peace with himself.  He said that the treatment changes your outlook and how you feel about things.  He said that he no longer craves a drink.

Mr Lowey asked the complainant about his increment which was due for payment in March 2019.  In April, when he hadn’t been paid the increment, he made an enquiry about it and he was informed that it had been deferred.  He said that he was taken aback at this.  There had been no consultation.  He was told that there was a policy regarding the non-payment of an increment if sick leave reached a certain level, but he couldn’t find the policy.  The description of the policy that he was given didn’t make any allowance for people with disabilities.  He consulted a solicitor and challenged the decision and, in January 2020, he received the increment with back pay.

Asked why the increment was deferred, the complainant said that “a certain view was taken of me and absences and I was being taught a lesson.”

In June 2019, Ray Briscoe was replaced by a new line manager and the complainant said that he “kept his head down.”  He didn’t meet his new manager until December 2019 or January 2020 at his end of year review.  He told his manager that he had been in treatment for alcoholism and about the problems with getting paid his 2019 increment.  He said that his manager remarked that he wasn’t very popular in management circles.

In January 2021, the complainant applied for a promotion as a senior prosecution solicitor.  He was surprised that, given his length of experience, he wasn’t shortlisted.  He said that he was partly relieved, because he thinks that he isn’t very good at interviews.  He said that people with less experience than him were interviewed.  In response to Mr Lowey’s question about why he applied for the job, the complainant said that it was the next rung of the ladder and was an opportunity for career progression.  The job entailed a low level of management responsibilities and an opportunity to develop.  He said that it’s difficult to say what the normal rate of progression is for a solicitor in the ODPP.  Some move quickly and others take ages.  After he submitted his application, he got an email telling him he wasn’t shortlisted.  He said that an awful lot of people applied, virtually anyone at the grade of prosecutor.

The complainant said that he looked for feedback regarding why he wasn’t shortlisted and he was given a copy of the scoring of his application form.  A copy was included in an appendix to his submission for the hearing.  He said that he was disappointed that he wasn’t shortlisted and he thought about moving on and applying for jobs outside the ODPP.

Mr Lowey asked the complainant if he thought that his disability had a bearing on him not being shortlisted for interview.  The complainant replied that it was hard to know.  He said, “taken in the context of other issues, it’s a distinct possibility.”

The complainant said that he had no further follow up about his alcoholism with Mr Briscoe or his line manager after Mr Briscoe from June 2019.  In 2024, he said that he had a couple of meetings with the Head of HR Operations and the Disability Liaison Officer, Ms Pamela O’Connor.

In January 2021, the complainant said that there was “an atmosphere” in the office.  He had taken annual leave because his children were out of school because of Covid-19.  A book of evidence that he was dealing with had to go to court and his then manager said that she wouldn’t have approved his leave if she had known that the work on the book wasn’t completed.  He explained that a district court file had to be sent to the circuit court.  A form must be filled out and the file goes into an out tray and the file is sent up.  The complainant said that, in his absence, the form could have been filled out by his “work buddy” or his manager could have done it herself.

In February 2021, the complainant applied for a transfer out of the District Court Section.  He said that he was aware of anomalies in the way work was distributed to staff, and he found it difficult to understand.  He said that cases come in every week and are assigned on an ongoing basis.  He said that he was given high volume but not serious files, and none for murder or rape.  He said that “if certain work is continually not assigned to one individual, then something isn’t right.”  He said that the cases are “not forensically equal,” and “in theory, we should get our fair share.”  Some staff who were only in the office for a year or two were “serving murder books.”  He said that he found it humiliating that a person with one year’s experience was getting murder files to work on.  He said that the failure to assign more serious work to him was discrimination and victimisation and an attempt to sideline him and prevent him from getting promoted.

The complainant said that he is currently the second-longest person in the District Court Section.  If he had more experience, he would be able to impress more when applying for a promotion.  He is more likely to encounter challenging situations in the more serious case files.  He said that it is pertinent from the point of view of being interviewed, that he has never been given anyone to mentor.  He said that, although he had helped colleagues with all sorts of things, he couldn’t demonstrate that he had the competency of mentoring, and most others have this competency.  He said that this related to 2021.  After he raised it as an issue, when Declan Keating became his line manager, in April 2022, he was assigned the next new joiner to mentor.

Asked by Mr Lowey to describe how it felt not to be assigned someone to mentor, the complainant said that he had a “nagging suspicion” that he was being discriminated against because he is an alcoholic.  He said that he asked himself if he was imagining it and if he was being paranoid. 

When he applied for a transfer in February 2021, the complainant said that he was informed that the next transfers from the District Court Section would be to the Sexual Offences Unit.  The complainant said that he wasn’t interested in moving there, because he had already dealt with sexual offences.  He had no further communication from the chief prosecution solicitor about his request for a transfer.  In September 2022, one year and seven months later, he made a request for a transfer again.  He said that the HR department hadn’t been aware that he was seeking a transfer.  On the date of this hearing, he was still in the District Court Section, 44 months after he made his initial request. 

At the time, the complainant said that the process for applying for a transfer was “amorphous.”  He said that, before 2017 when he moved to the District Court Section, he was transferred a lot of times.  He said that sometimes he knew why and other times, he didn’t.  He said that the process is more formalised now.  He said however, that staff are not told what the criteria is.  He said that his September 2022 request is “still live” and that, more recently, a form has been devised, which he has filled in.  He said that he met the disability liaison officer, Ms O’Connor recently for a discussion, but that nothing definitive has emerged.

As time went on, the complainant said that others were being transferred and some transferred who didn’t request a move.  Some were promoted.  The complainant said that five solicitors from the District Court Section were transferred to the Directing Division.  Of the 29 staff in that division, five are from the District Court Section.

Asked by Mr Lowey why he thinks he hasn’t been transferred, the complainant said that he is being punished and discriminated against because of his alcoholism.  He told Mr Lowey that he was never asked why he wanted to move.

Following a break at the hearing, Mr Lowey asked the complainant about the respondent’s Strategic Work Force Planning (SWFP) Guiding Principles for the Allocation of Resources.  The complainant said that he has met Ms O’Connor twice in the last couple of months.  He said that he told her how his disability affects his ability to do his job in the District Court Section.  He said that he never came away with a better understanding of what is going on with regard to his request for a transfer.  He said that he never got a copy of the SWEP principles and he didn’t discuss them with Ms O’Connor.  He got a copy of the mobility policy recently and he had to fill out a form.

The complainant referred to a colleague who joined as a prosecutor in May 2021.  He said that this person went straight to the Directing Division which he described as the “head and brains” of the organisation.  He said that this person qualified as a solicitor in 2017, like himself.  He said that it is unheard of for a prosecuting solicitor to go straight to the Directing Division.  He said that he remembers being “galled” that “he walked in off the street” and was assigned to the Directing Division.

The complainant referred to another colleague who transferred to the Directing Division on promotion to a senior prosecutor.  He said that there is a policy of transferring people on promotion and that this happens in about 50% of cases.

He referred to two solicitors who moved from the District Court Section in April and June 2022 respectively.  He said that neither asked for a transfer.

In the summer of 2022, another colleague’s request for a move was granted.  Another colleague went to the International Division.

The complainant referred to a colleague who has a specific illness and who was relieved of court-going duties for five months from October 2022 until February 2023 and then assigned to court duties just one day a week.  He said that this colleague was offered transfers but “held out for a move to the Directing Division,” to where he was transferred in August 2023.

The complainant said that he was never offered time out of court and never offered time when he didn’t have to prepare for hearings.  He said that he was never offered to do court hearings just one day a week.

He referred to a colleague who worked for 11 years in the District Court Section and who was transferred a number of years ago.

Mr Lowey asked the complainant about his decision to volunteer to work on data protection.  The complainant said that in November 2021, when he hadn’t succeeded in being transferred from the District Court Section, he got an email in which staff were informed that volunteers were required to do data protection work.  He said that he hoped that this would get him out of the District Court Section.  He said that he was very busy at the time, but he figured that if he took on data protection breaches, the work of the District Court would be taken off him.

Mr Lowey referred to an email that the complainant sent to a senior prosecutor on December 23rd 2021.  The email reads as follows:

“A member of the District Court Section has told me that you've been making disparaging remarks about my emotional/mental health to colleagues in the section.  I find it disturbing that a member of management of the District Court Section would seek to undermine me in the eyes of my colleagues. I am asking you to desist from doing so in the future.”

There was no reply to this message and the complainant said that the manager no longer speaks to him except when necessary and related to work issues.

The complainant said that he is unaware of training for staff on equality or diversity matters and that he has not received such training himself.  He does not remember ever receiving a policy on dignity at work.  He said that he may have received a policy on bullying and harassment.

Mr Lowey returned to the complainant’s decision to challenge the remarks inserted by his manager on his 2018 PMDS review form.  He sent a letter to the HR manager on January 24th 2022 in which he asked for his manager’s comments to be reviewed.  He was particularly concerned about the following paragraph:

"Michael has had a difficult end to the year 2018.  While certain work issues presented in the last number of months I am confident that with Michael's positive attitude combined with the proper management supports in place, that Michael will continue in his positive development.  Michael has developed to cover District Court hearings in all courts.  While the District Court can be challenging in a more direct manner that other sections in the office I firmly believe that Michael Is well suited to his role and I understand that he is enjoying his time in the District Court. I fully expect Michael to fulfil his real potential in the next year."

Mr Briscoe had given the complainant a very favourable review at mid-year 2018, and the complainant challenged the statement about work issues “presented in the last number of months.”  In his evidence at the hearing, he said that the reference to the “last number of months,” must be a reference to his opening up about his alcoholism.  He asked what went wrong between the mid-year review and the end of year review?  He said that there was no reason for his work to have deteriorated in that length of time and that his manager was “just covering himself.”

The complainant said that, for a long time in his life, he didn’t stand up for himself.  As part of his recovery, he has been encouraged to raise issues that are a concern and to avoid the build-up of resentment.  He said that he felt that his manager’s remarks were unfair and he decided to challenge them.   

In response to his January 24th 2022 letter, the complainant said that he was informed that his review couldn’t be re-opened because he had signed it.  He said that his signature was not voluntary.  He claims that he shouldn’t have been confronted with issues that he hadn’t had a chance to correct.  The review was procedurally unfair but he said that he signed it because, when he did the residential treatment programme, he was advised to avoid conflict.

In November 2021, the complainant said that he received a book of evidence for a murder case from a colleague with much less service compared to him.  He said that he found this humiliating.  When a new person started in the Section and was assigned to share an office with him, he wasn’t asked to mentor her.  He said that he decided to confront the issue, otherwise it would lead to resentment.

In February 2022, similar to what occurred in 2019, his manager’s remarks on the PMDS review form were bothering him.  The complainant said that he thought that it was better to record his response in writing, rather than have a discussion.  He said that he wanted to set out in black and white the issues he was unhappy with and he put his concerns in writing so that everyone was clear.

Mr Lowey asked the complainant about his comment that he “managed to get through it” on the final page of his 2021 PMDS.  The complainant said that, after Covid-19, an unprecedented number of files came in from the Gardaí and this resulted in a deluge of work.  When he read the manager’s comments on this page, the complainant said that it seemed as if his manager was trying to characterise murder and rape books of evidence as separate or additional work.  He said that he sought to review this remark, because he didn’t know what it meant.  He accepted that there is a very restricted right of review of PMDS reports, but he said he exercised that right.  He said that he got a response after six months in which he was informed that he had no right to review the narrative commentary in the document.  He said that he was disappointed but not surprised.  When he sought to review a comment inserted by his then manager, Mr Briscoe, in 2019, the complainant said that he was told that he couldn’t have a review because he had signed the document.  Now, in March 2022, he was told that only the rating could be reviewed. 

Mr Lowey asked the complainant about the events from August to December 2022.

The complainant said that his manager at that time, Mr Declan Keating, instructed that all books of evidence were to be submitted electronically.  He said that this meant that all the editing had to be done in Microsoft Word and this involves more work, which is mostly clerical.  He said that he got no training on this change to electronic books.  Because he wasn’t the quickest at doing books of evidence, and not the fastest on computers, in September 2022, the complainant decided he would look for a transfer again.

At the end of September, he said that things got “hairy.”  He was completely overwhelmed and was having random suicidal thoughts.  He said that he went to his doctor, who was reassuring.  His doctor advised him to take time off work and he was certified as sick for five weeks.  He was due to return to work in mid-December.

On December 16th 2022, when he was back work for a couple of days, the complainant had a meeting with his manager, Mr Keating.  He said that his understanding of the purpose of a return to work meeting is that it is to update the person who has been absent about any changes in the job while they’ve been away. 

Mr Lowey referred to a template document to guide managers and employees through the return to work conversation.  The suggested questions are:

Are there any practical steps that we can take to facilitate your transition back to work?

This is what has happened in the Office while you were out.....

Do we need to update your PMDS goals?

Are you aware of the services offered by the Employee Assistance Service and Disability Liaison Officer and do you have contact details?

The complainant said that Mr Keating told him about books of evidence files that he hadn’t yet started on.  He said that he asked him how he was, but he didn’t ask him the reason why he was absent.  He said that Mr Keating regularly compiles statistics on work in his section.  He said that Mr Keating says that he knows he is completely overwhelmed but then asks why he hasn’t got work done.  The complainant said that there was no discussion at this meeting about his performance.  He said that Mr Keating did not tell him that he was conducting an enquiry into his work while he was on leave.  A copy of a memo compiled by Mr Keating on November 30th 2022 was included in the respondent’s book of documents.  Mr Keating listed issues related to five books of evidence that were assigned to the complainant and which were not completed or not fully completed and had to be finished by other staff members.  The complainant said that, when people are on sick leave, their files are distributed to others.  He said that he doesn’t complain about this, and nobody complains.

Mr Lowey referred to a memo that the complainant sent to himself after the meeting on December 16th 2022.  No one had ever complained about his work before and he said that he felt pretty low and humiliated.  When he challenged Mr Keating about others being assigned more serious books of evidence, he said that he got quite angry.  But, in January 2023, Mr Keating assigned a murder book to an employee that he had been mentoring.

The complainant said that there was never a review of the risks associated with his disability, and no one ever suggested that he return to be examined by the CMO.

By April 2023, the complainant had no response to his request for a transfer and, on April 7th, he submitted this complaint to the WRC.

Cross-examining of the Complainant

Opening her cross-examining of the complainant, Ms Ennis asked him if he had difficulties completing his Final Exams to qualify as a solicitor.  The complainant said that he suffered from stress and anxiety at the time, but he said that he didn’t get coaching to help him to pass the exams, although he said that he knows another person who did.

Ms Ennis asked the complainant about his absences from work.  He said that he was out about 20 years ago when he had back surgery.  From January 4th until April 25th 2019, he was in the residential treatment programme for alcoholism.  He was out sick then for five weeks in November / December 2022.  He was absent again from November 17th 2023 until March 24th 2024.  The complainant agreed with Ms Ennis that, in the past six years, he has been out sick for a total of seven months.

In response to a question about the evidence of his disability, the complainant said that he was never asked for evidence.  He was never asked for written confirmation that he attended the residential treatment programme.

Ms Ennis referred to the complainant’s case that he has been discriminated against and that his employer has failed to provide him with reasonable accommodation for his disability.  In terms of reasonable accommodation, the complainant said that, in February 2021, he looked for reasonable accommodation in the form of a transfer to the directing division, or to the international division or the section dealing with research.  He said that he wanted to go somewhere with less court-going responsibilities and for his workload to be less homogenous.  He said that he tends to be a perfectionist and he focuses on one thing to the detriment of other tasks.

In the section where the complainant works, in the District Court, he said that he has a lot of dealings with the public.  He said that this makes it difficult to go to an AA meeting, where he could be recognised.  Working with the higher courts, the possibility of being recognised is less.

If he couldn’t have been facilitated with a transfer, the complainant said that he could have had his court-going responsibilities reduced and been given increased work on books of evidence.

Ms Ennis summarised the complainant’s understanding of reasonable accommodation as, firstly a transfer, or, in the alternative, a reduction in court-going responsibilities.  She referred to the definition of reasonable accommodation at s.16(3) of the Employment Equality Act, which defines the concept as a measure that would support an employee to be fully competent and capable of performing their duties.  She asked the complainant what duties he has not been able to perform because of his disability.  The complainant replied that he had to take time off due to anxiety and he has had to take medication to deal with stress.  He said that, if he was working in another section, he wouldn’t have to take time off.

The complainant said that there is no aspect of his job that he isn’t able to do, but that he experiences sickness and anxiety if he has a heavy day.  He loses his appetite and doesn’t eat breakfast. 

Ms Ennis asked if this isn’t normal and the complainant replied that it’s a question of degree.

Ms Ennis remarked that he always turns up in court and performs his role and the complainant agreed.  He has no issues with court work.  He has never been disciplined, although his work is being overseen.

Ms Ennis asked the complainant if he has submitted any medical evidence to justify a requirement for reasonable accommodation.  The complainant replied that he had provided sick notes that show he is suffering from work-related anxiety.

Ms Ennis asked if the complainant could provide any medical evidence that shows that a transfer or a reduction in court-going work would relieve his anxiety and the complainant replied, “No.” 

Ms Ennis referred to the document sent by the HR department to the CMO on February 12th 2019, when the complainant was absent and participating in the residential treatment programme.  She referred to the section of the form which asks,

“Advice on current status in regards to Michael’s health & prognosis for immediate, medium term and long term future.

“Are there any accommodations we can make to facilitate Michael’s return to work?”

In his direct evidence, the complainant described his meeting with the occupational nurse in the CMO’s office as “a brief chat.”  He said that he mostly talked to her about his treatment in the residential programme.  Ms Ennis then referred to the letter of March 6th 2019 from the nurse following her meeting with the complainant in which she said that “he has had no issues since his return and does not require any workplace accommodations.”  The complainant agreed that he didn’t look for reasonable accommodation at that time.  Since then however, he has looked for a transfer from the District Court Section, although he didn’t use the term “reasonable accommodation.”

Ms Ennis asked if, as part of his treatment, he wasn’t advised to be up front about what he needed.  He replied, “If a lawyer such as myself doesn’t use the term ‘reasonable accommodation,’ an ordinary citizen wouldn’t use it.”

Although the complainant gave evidence that he told Mr Briscoe, his manager at the time, that he had been in a residential treatment programme only when he finished the programme, Ms Ennis said that Mr Briscoe will say that the complainant told him in January, before he started on the programme.  The complainant disagreed.  He said that he didn’t accept that he had a problem until he went on the programme.  He said that he told Mr Briscoe after he returned to work on February 26th.  Ms Ennis asked the complainant if he recalled that he agreed with Mr Briscoe that the HR department wouldn’t be informed about the reason for his absence.  Ms Ennis said that Mr Briscoe will say that he didn’t tell anyone that the complainant had received treatment for alcoholism.  The complainant said that he didn’t think that was true, and that he imagined that he “went upstairs and told management.”  He said that he didn’t ask him to “keep it quiet.”  He said he told Mr Briscoe that he wasn’t going to “tell HR.”  He said he thought that if he told one person, he was going to tell everyone.  The complainant agreed that he has no evidence that Mr Briscoe told anyone but he said that he imagined that he did.  He said that he has no basis for saying that he told anyone.

Ms Ennis reminded the complainant that on March 22nd 2029, he was back at work for about a month after his residential treatment programme, and he met Mr Briscoe.  The complainant agreed that they had a meeting to work on his PMDS for 2018.  The complainant said that Mr Briscoe brought up two issues; firstly, that his didn’t correctly put something in the diary, and secondly, that he applied for a bench warrant incorrectly.

Ms Ennis said that Mr Briscoe will say that he had a discussion with the complainant and that he confirmed that he didn’t need any reasonable accommodation.  The complainant replied that he said that he didn’t need anything at the time and that he would get back to him.

Ms Ennis referred to the fact that the complainant first looked for a transfer on February 11th 2021, two years after he completed the residential programme.  She put it to the complainant that his position is that this was a request for reasonable accommodation.

The complainant replied that, at the time, he was performing his role with some difficulty and that it was taking a toll.  He said that it was widely known that there were problems in the District Court Section and that his manager’s style was problematic.  He said that he tried to get across a message that he wanted to move.

Ms Ennis said that, in his email of February 11th 2021 to Ms Kiely, the complainant said that he was “interested in a move from the District Court.  He did not say that he required a move.  The complainant replied that, in his circumstances, the pressure was felt more keenly. 

Ms Ennis remarked that he didn’t say that this was something that he needed for the benefit of his health.  She asked the complainant how someone would know that this was a request for reasonable accommodation. 

The complainant replied, “Should I have to spell it out to someone who had first-hand knowledge of disability and who understands what’s going on in the division?”  He said that “doing the job was having an outsize effect” on his life and he was becoming a higher risk and he went along.  He said that, since he made this request, 12 people have been transferred out of the District Court Section.

Ms Ennis put it to the complainant that his request for a transfer doesn’t meet the definition of a request for reasonable accommodation.  He didn’t use the word, “request.”  He didn’t say that the conditions in the Section were impacting on his health.  He didn’t single himself as more needful than others.

The complainant said that he is relying on the information that Ms Kiely already had.  He said that he thinks the employer is obliged to ask.  On his complaint form which he submitted to the WRC in April 2023, he said that he looked for reasonable accommodation in February 2021 and September 2022.  He said that they must have known in April 2023.

The complainant agreed with Ms Ennis that Ms Kiely is managing more than 80 employees and that many are looking for transfers.  She referred to Ms Kiely’s reply to the complainant’s email of February 11th 2021 in which he said he was interested in a move.  Ms Kiely said that the” next moves will be around the SOU which doesn’t involve moves from the International Unit.”  “SOU” refers to the Sexual Offences Unit.  The complainant agreed with Ms Ennis that he didn’t want to move to that unit.  Ms Ennis suggested that, to advance his career, he wanted to move somewhere he hadn’t already worked.  The complainant said that “it could be a bit of both.”  He said that he didn’t want to take a step backwards and do something that he had already done.  He said, “You can have more than one motivation for wanting to transfer.”

Ms Ennis referred to the complainant’s email of October 3rd 2022 in which he told Pamela O’Connor in the HR Department that “the only place I am really interested in transferring to is the Directing Division.”  Ms Ennis suggested that this indicates that he was interested in expanding his experience and furthering his career, but not that he was looking for reasonable accommodation.

The complainant said that he didn’t want to come across as demanding.  While he wasn’t comfortable where he was, he wasn’t in a bad place at that stage, and he could still keep doing the job.  In August 2022, when the decision was made to submit books of evidence electronically, he said that he thought he would have a difficulty with this and, that September, he asked for a transfer.

The complainant described the effect of the change to electronic books of evidence, which involves contacting the prosecuting authority and getting statements electronically.  He said that the work is fragmented and a lot more difficult.  He said that, to keep up, he now takes the work home.

Ms Ennis referred to the respondent’s SWEP Guiding Principles for the Allocation of Resources.  Of the 11 criteria used as the basis for the assignment of staff, one is “mobility requests.”  She said that the ODPP hasn’t got the luxury of accommodating many requests for transfers.  The complainant replied that, since he made his request for the first time in February 2021, 12 people have transferred and five of these employees have moved to the Directing Division.   He said that he is currently the longest-serving solicitor in the District Court Section.  He disagreed with Ms Ennis’s suggestion that it was important to keep experience in the section, and referred to the 12 people who have moved.  He said that some didn’t look for a transfer and others were moved to divisions that they didn’t want to go to.  He said that he should have been singled out because he has a disability.

Ms Ennis asked the complainant if he is saying that he is being treated less favourably compared to others, and not transferred, because he has a disability.  The complainant replied that it’s a long time to wait, even for someone without a disability.

Ms Ennis remarked that the complainant has referred to people getting a transfer that they didn’t request, but he looked for a transfer that he didn’t get.  The complainant replied that Ms Ennis was “assuming we are all equal, but we’re not.”

Ms Ennis returned to the complainant’s request for a reduction in court-going duties as a form of reasonable accommodation, but she said that he never requested this.  The complainant replied that he was hoping that a transfer would come through and that he didn’t think it would take this long.  He said that it would be unfair to accommodate someone in this way.

Ms Ennis asked the complainant about his request for additional responsibilities in the form of mentoring, input into the District Court Manual and work on cases returnable to the Central Criminal Court (CCC).  The complainant replied that he looked for data protection work.   He said that he wanted to be treated in the same way as others.  He said that his workload was homogenous and repetitive and he wanted to get more experience.  When Ms Ennis challenged the complainant about his description of his work as “homogenous,” he said, that ideally, he wanted work that was homogenous.

Ms Ennis returned to the complainant’s grievance about his PMDS review for 2018, completed in March 2019.  In his narrative assessment, Mr Briscoe had written,

“While certain issues presented in the last number of months, I am confident that with Michael’s positive attitude combined with the proper management supports in place, that Michael will continue in his positive development.”

The complainant said that he only qualified as a solicitor in 2017 and, before the meeting with Declan Briscoe, he wasn’t aware of any issues regarding his performance.  He said that the issues were spurious, the failure to properly record something in a diary and not properly applying for a bench warrant.  He said that it was bizarre to bring these up at an end of year review.  He said that he had a good mid-year review in September 2018.  He said, “In PMDS-land, you generally say something positive.  If you refer to problems, you need to have told the person during the year.”

Ms Ennis said that, while the complainant’s position is that the issues weren’t serious enough to be included in an end of year review, she said that Mr Briscoe went on to say positive things about the complainant’s contribution to the Section.  She pointed out to the complainant that he signed the form.  The complainant said that he regretted signing it and that he had done so because he was advised to avoid conflict.  He said that he signed the PMDS form and he tried to let it go.  Then he sought to re-visit it.

Ms Ennis reminded the complainant that he suggested that Mr Briscoe raised the negative issues “to cover himself” and to show that he knew that he had a recovering alcoholic on his team.  She asked the complainant about his evidence for this contention.  The complainant replied that he had no evidence and that this was “just my view.”

Ms Ennis said that Mr Briscoe will say that he was taken aback by the allegation that he was covering for not knowing that the complainant was an alcoholic.  He left the District Court Section in June 2019.

Ms Ennis asked the complainant why he decided to re-visit the PMDS review completed in March 2019 almost three years later, in January 2022. The complainant said that he was beginning to feel resentment and that this isn’t a good thing.

At this point in his cross-examination, I asked the complainant if it is his case that discrimination occurred because of what Mr Briscoe wrote on his 2018 PMDS review, or if discrimination occurred because, he claims, Mr Briscoe wrote what he wrote to cover himself.  The complainant said that discrimination arises from both situations.

Ms Ennis referred to the complainant’s PMDS review for 2021, completed in February 2022.  The complainant said that he had an issue with the following remarks made by his manager at the time:

“Additional work, above and beyond core duties, is assigned in the section on the basis if capacity to complete additional work and not just experience or ability.  Additional work is also assigned on the basis of expressions of interest.”

He said that he interprets this as a response to his request to work on books of evidence for murder cases.  He said that his manager’s comments don’t address the issues he raised and that he was looking for an explanation of why he was being treated differently to others in the District Court Section.

Ms Ennis put it to the complainant that he didn’t have to ask for his review to be changed to address this issue, and that he could a have raised a grievance.  The complainant agreed that he had this option.

The complainant referred to his 2018 review, and the instruction from the HR department that, once the review was signed, it couldn’t be changed.   On this occasion, in February 2022, he didn’t sign the review form and he was told that he could apply to have the grade reviewed, but not his manager’s comments.  He said that, if the rating is wrong, then the manager’s comments would have to be reviewed.

Ms Ennis asked the complainant if his position is that another employee would have been allowed to make changes to the PMDS review document and that, by not being allowed to do so, he has been discriminated against.  The complainant said that he doesn’t know any other employee who was permitted to have their manager’s assessment changed on their PMDS review form.  He said that he thinks the General Council Report on PMDS reviews has been interpreted less favourably in his case.

Ms Ennis asked the complainant why, when he was informed that he couldn’t have the comments reviewed, that he didn’t try to have the matter addressed in another way.  The complainant replied that he didn’t think about it.

Ms Ennis referred to the withholding of the complainant’s 2019 salary increment.  The complainant said that the increment was paid in January 2020 and back-dated and that he had to get a solicitor to intercede for him to get it paid.

Ms Ennis referred to the complainant’s claim that a manager made disparaging comments about him in December 2021.  The complainant said that he didn’t complain to the HR department about this, but that he wrote to the manager directly, who desisted from making any further remarks.

After a break, Ms Ennis referred to a table presented by the respondent in their book of documents.  The table shows the number of murder / Central Criminal Court files assigned for hearing in Dublin over five years between 2019 and 2023.  In 2023, 1,545 files were assigned.  The highest number over the five years was 1,842, in 2021.

The table shows that, between 2019 and 2023, the number of prosecutors in the District Court Section ranged from 22 to 25, with 25 employed in 2023.  In that year, 58 CCC files were assigned to the District Court Section, two of which were assigned to the complainant.  Of the 58 books of evidence returnable to the CCC, 14 were murder cases.  None of these were assigned to the complainant.  The pattern is similar across the five years; in 2022, he was assigned three CCC files, one in 2021, none in 2020 and two in 2019.  The number of murder books ranged from 11 in 2022 to 19 in 2021 and the complainant was never assigned a murder file.

In response to the information on the table, the complainant said that he was assigned three CCC files in 2022 because he made a complaint.  He said that all the cases were concerned with rape and he was never assigned a murder book.  He said that he is a lot more senior than some prosecutors and he has been in the office of the ODPP a lot longer than others, but some recently qualified solicitors have had murder books assigned to them.  When he made his complaint through the PMDS system, he said that “a girl in the office just a year and a half was assigned a murder book.”  As the most serious criminal offence, he said that he doesn’t understand why he hasn’t been assigned a murder book.

Ms Ennis suggested to the complainant that some prosecutors have been assigned murder files because of their experience; however, the complainant said that he didn’t accept this.  He said that everyone in the office has been assigned a murder book and “I go to court.”  He then said that there could be one or two people who haven’t been assigned murder books.     

Ms Ennis said that it will be Mr Keating’s evidence that he had a meeting with the complainant in 2022 and that he made no mention of murder books.  The complainant replied that he was mentoring a colleague and that, in January 2023, Mr Keating assigned her a murder book.

Ms Ennis put it to the complainant that he was asked to mentor a new colleague and he said that this occurred only after he asked for someone to mentor.  Ms Ennis asked him why it is a problem to ask for more responsibilities.  The complainant replied that “the way things work is that work is allocated.” 

Between 2019 and 2021, the complainant said that he focussed on his recovery.  He agreed that he didn’t raise his grievance about not being asked to mentor someone and he said that it wasn’t easy to raise issues with his manager at the time.  He said that he preferred to raise issues in writing.  He agreed that, when he raised the issue, he was given a person to mentor.

Ms Ennis referred to an email from a member of the training unit to Ms Kiely on March 2nd 2021.  The official in the training unit sent Ms Kiely a list of staff in her division who expressed an interest in doing a course on legislative drafting which was due to take place in the UK from May 17th to 21st 2021.  Ms Kiely replied that she was “not inclined to send anyone to this conference at the moment.”  She said that her reasons were that it was a week-long commitment, that the course wasn’t directly relevant and that it was a UK course.  Four solicitors from the Directing Unit also expressed an interest.  One solicitor was approved to attend.

Ms Ennis reminded the complainant that, with regard to this course, he claimed that Ms Kiely’s decision not to permit him to do the course was discriminatory and she asked him how this was the case.  Ms Ennis asked the complainant if he was saying that he wasn’t nominated for the course because he is an alcoholic.  The complainant said that this should be considered in tandem with other incidents.

Ms Ennis asked the complainant how he could claim that he was discriminated against, when, like 17 of his colleagues, he wasn’t permitted to attend the course.  The complainant replied that his manager at the time sent him an email telling him that she wouldn’t approve him for the course because he had done a similar course previously.  He said that he is relying on this email, in which his manager said that he had done a previous course. 

Ms Ennis asked the complainant to expand on his complaint about the failure of his manager to take him up on his offer to update the District Court Manual.  The complainant said that he volunteered to do this work and that he heard nothing further.  He said that this work was a priority.

The complainant does not accept that the fact that the task was assigned to a deputy head of the Section is not discriminatory.  He said that there are too many coincidences for that to be true.  He said that he thinks his manager didn’t want to give him an opportunity to contribute to the Section, so that he could use this contribution at an interview for a promotion.

Ms Ennis put it to the complainant that no volunteers were asked to do the job, but the complainant said that he wasn’t sure about that.

Ms Ennis referred to the complainant’s grievance about not being asked to contribute to a District Court Section meeting about a particular case.  The complainant said that the case was at the Children’s Court and that he wasn’t asked to contribute.  He agreed that he didn’t offer to contribute, but he reiterated that he wasn’t asked.

Ms Ennis referred to an email from Mr Keating which he sent to the solicitors in the District Court Section about two meetings scheduled for May 18th and 19th 2022.  The complainant said that he accepts that Mr Keating asks people for contributions.  He said that he didn’t offer to make a contribution and that he wasn’t asked.  He said that Mr Keating puts together an agenda and people are nominated to speak on certain issues.  He said that Mr Keating asked the solicitors to speak about topics.  Ms Ennis suggested that some may have offered to speak, but the complainant said that it’s more likely that the manager would ask the individual to speak.

Ms Ennis referred to the vacancy advertised in January 2021 for a senior prosecutor.  The complainant applied for the role but wasn’t shortlisted for interview.  Ms Ennis noted that, at the time, the complainant had just over three years’ post-qualification experience.  The complainant said that he had 20 years of experience working in the ODPP.  He said that no other applicant would have had his depth of experience.

Ms Ennis asked the complainant if he knows where his experience ranked in the order of merit for selection of candidates for interview.  He said that he didn’t know.  He looked for feedback and he received a copy of the marks for his application.  He was invited to look for oral feedback, but he didn’t request it.

Ms Ennis put it to the complainant that the failure to shortlist him for interview for this role couldn’t possibly be conceived of as discrimination.  The complainant said, “looked at in isolation, maybe,” but he said that, in the context of other issues, there is a strong possibility of discrimination.  He said that with regard to the shortlisting itself, there’s nothing specific he can point to.

Ms Ennis asked the complainant if, by applying for promotion and by looking for more responsibilities, if this wasn’t likely to lead to more stress.  The complainant replied, “not necessarily.”  He said that, in a different section, the work could be less stressful.

Re-direction by Mr Lowey

Re-directing questions to the complainant, Mr Lowey referred to the letter of March 3rd 2019 from the occupational nurse in the office of the CMO.  The nurse stated in her letter that the complainant “does not require any workplace accommodations.”  The complainant told Mr Lowey that he didn’t discuss his workload with the nurse.  He discussed the fact that he had been treated for alcoholism, but he couldn’t remember if he spoke to her about the co-morbidities of anxiety and depression.

The complainant said that he was never invited to meet the CMO specifically to discuss his disability.   He said that he was referred for an examination after he was on sick leave.  He was never referred for a professional assessment.

The complainant said that, before he went on the residential treatment programme, he told Mr Keating that he needed to take time out due to anxiety.

At the time that he applied for a transfer in February 2021, the complainant said that he thinks that Ms Kiely would have had sight of the letter from his solicitor regarding the non-payment of his increment in 2019.  The letter was clear that he had been treated for alcoholism.

When he applied for the transfer, he said that he felt that he was being treated strangely and this was a source of stress. He said that he wanted a change and this is why he looked to get out of the District Court Section.  Diversity and inclusion are factors in the consideration of a request for a transfer.

Mr Lowey asked the complainant about the statement he included in his 2021 PMDS form where he referred to “disparities in the way tasks are distributed in the District Court Section with the result that I am not being given the same opportunities as others.”  He went on to refer to not being assigned books of evidence for murder cases, not being asked to mentor new staff and not being permitted to do a course in legislative drafting.  The complainant said that he saw the PMDS review process as another way of raising a grievance in a general sense.

Summary

When he finished his evidence, I asked the complainant to summarise his case that he was discriminated against and that the respondent failed to provide him with reasonable accommodation for his disability.  He said he had no issues at work before he finished his treatment in February 2019.  Then, he had a problem getting paid his increment, which was withheld because of his absence on the treatment programme.  He said that he didn’t tell anyone that he was in a residential programme, but that he would do things differently now.

Between 2019 and 2021, the complainant said that he began to notice issues at work but that he was too busy dealing with his own issues to address the work-related problems.  In 2022, he decided he had to confront these issues.  He needed to avoid becoming resentful and angry.

Evidence of Ms Helena Kiely, Chief Prosecution Solicitor

As chief prosecution solicitor, Ms Kiely is the head of the Solicitors’ Division and  has been in this role since 2015.  The Solicitors’ Division is one of four divisions in the ODPP and responsible for court-going staff.  The solicitors represent the DPP in court. 

Ms Kiely said that the focus of the Directing Division is on making decisions about whether to prosecute a case or not.  Each solicitor in that division makes about 500 decisions each year, based on whether it is in the public interest to prosecute a case.

Ms Kiely said that there are pressures in the Solicitors Division and in the Directing Division. 

The Solicitors Division provides a solicitor to the district courts, they prepare books of evidence and they prosecute cases.  Ms Kiely said that 63% of work is based outside Dublin, and the books of evidence for courts outside Dublin are prepared by local state solicitors.

Rape cases make up 80% of the work of the Central Criminal Court.  Murder cases can be dealt with at district court level.  

Ms Kiely said that she knows the complainant well.  She said that she was copied on correspondence from a HR manager in November 2019, which included correspondence from his solicitor.  She said that she hadn’t been aware that he had had treatment for alcoholism.  She said that she spoke to the HR manager about the increment and the matter was resolved.  She said that she remained friendly with the complainant and she had no argument with him.

Ms Ennis asked Ms Kiely about the first time the complainant requested a transfer in February 2021.  Ms Kiely said that everyone was under stress at this time.  She said that she didn’t see the need to move quickly with regard to the complainant’s request.  She said that, after Covid, work was different for everyone.

Ms Kiely said that she didn’t see the complainant’s request as anything other than an interest in a move.  She didn’t read it as a request for reasonable accommodation.  She said that 2021 was a difficult time for everyone in the office.  Between 2020 and 2021, there was a 40% increase in files coming into the office because the Gardaí were freed up to do the work.  In March 2020, 19 people moved to the SOU to plan for the establishment of that Division in August that year.  In 2021, five employees were on maternity leave.

Ms Ennis referred to the email sent by the complainant in response to Ms Kiely’s reply to him in which she stated that the next moves would be to the SOU, but that she would keep a note of his wish to move to the International Division.  The complainant had said that he used the International Division as an example and that he was interested in a section that he hadn’t previously worked in.  He cited Directing, Victims or the Policy Unit as possibilities.

On September 29th 2022, the complainant wrote again to Ms Kiely asking about the possibility of a move.  Ms Ennis asked Ms Kiely why he hadn’t been transferred after he made his first request in February 2021.  Ms Kiely said that the HR department had agreed to take on the work related to staff transfers there was no HR manager from July to December 2021.  When a new HR manager was appointed, Ms Kiely said that she gave that person the spreadsheets she had been keeping with regard to requests for moves.

Ms Kiely referred to the Guiding Principles for the Allocation of Resources and she said that, from Q1 2022, there was a more structured approach to mobility.  With 84 employees in the Solicitors’ Division, 51 of whom are prosecutors, she said that the organisation tries to be fair to everyone.  To move someone out of the Solicitors’ Division into another division meant that someone had to be freed up to move in.  Ms Kiely said that the task is to balance the personal needs of staff with the needs of the business.  Ms Kiely did not agree with the complainant’s contention that he was treated less favourably compared to others, who were permitted to move.

Ms Kiely said that she has dealt with one request from an employee for a transfer on the grounds of a disability.  That person then withdrew their request and submitted it again a year later.  She said that this was specific request for reasonable accommodation.  She said that the decision was not solely hers to make.

Referring to the complainant’s expression of interest in doing the legislative drafting course in the UK in May 2021, Ms Kiely said that, at the time, “Covid was rampant and rooms were going down.”  She said that she couldn’t release anyone for a week to attend a course and no one from her division went to the conference.

Regarding the allocation of books of evidence, Ms Kiely said that the head of the section delegated work and decided what books were to be assigned to whom. 

Cross-examining of Ms Kiely

Mr Lowey opened his cross examining by referring to the complainant’s position that he was the only solicitor in the District Court Section who wasn’t assigned a book of evidence for a murder trial.  Ms Kiely replied that she couldn’t say if there was anyone else who wasn’t assigned a murder book.

Ms Kiely repeated that she became aware that the complainant had been treated for alcoholism when she was copied on a letter in October or November 2019 from his solicitor regarding the failure to pay him his 2019 increment.  When the HR manager at the time was informed that the complainant had taken leave to attend a residential treatment programme, the increment was paid and back-dated.  Until October or November 2019, the HR manager did not know that the complainant had a disability.  When it was disclosed, Ms Kiely said that the increment was paid.

Mr Lowey suggested to Ms Kiely that the complainant’s alcoholism should have been relevant when he requested a transfer.  Ms Kiely replied that the complainant didn’t say that he needed a transfer because of work-related stress or a disability.  She said that it wasn’t apparent that he was looking for a move because of a disability and she didn’t read his request for a transfer in that way.  Mr Lowey referred to the email the complainant sent to Ms Kiely on February 11th 2021 in which he said, “I feel the atmosphere in the section isn’t conducive to dealing with the already significant pressure we are experiencing.”  Mr Lowey suggested that this was a “red flag.”  Ms Kiely said that she looked at this email in the same way she looked at others and she did not read it as a request for a move because of a disability.  She said that she replied honestly to the complainant.

Asked about the pressure people were working under at the time, Ms Kiely said that Covid was very stressful for people and they had to try to be flexible.  She said that one person asked to be transferred because they were immuno-compromised.  The person then changed their mind and they were assigned more books of evidence instead of attending court.  Ms Kiely said that this person went to the HR department in the first instance and explained that they were unable to attend court.  They had a period of sick leave and when they returned, they were not required to attend court for a few months.  In 2024, this person moved out of the District Court Section.

Mr Lowey said that the nature of the complainant’s disability made it stressful for him to be in court.  He was looking for a less stressful job.  Ms Kiely said that there is a difference in how this other person engaged with regard to their disability.  They gradually resumed court-going duties and did not leave the Section until 2024.

Ms Kiely said that the International Division, where the complainant indicated that he wished to move, is not without pressure, as it deals with extraditions and requests for evidence from abroad.  She said that Brexit also had the effect of increasing the work in that Division.

Since April 2023, and the submission of this complaint to the WRC, Mr Lowey said that the complainant has “unambiguously asked for reasonable accommodation” but that there has still been no assessment of his needs.  Ms Kiely replied that there has been engagement with HR.  Mr Lowey said that the first engagement didn’t occur until November 2024.

Mr Lowey put it to Ms Kiely that she was aware in February 2021 that the complainant wanted a transfer.  She replied that that a mobility request was not a request for reasonable accommodation.  She said decisions were made based on business needs and fairness to others.  She said that it was only when the hearing opened on October 30th 2024, that “we knew that reasonable accommodation was being requested.”

Mr Lowey referred to the gap of one year and seven months between the complainant’s first request for a transfer in February 2021 and his second request in September 2022.  Ms Kiely said that in Q1 2022, responsibility for staff mobility transferred to the HR department and the Guiding Principles for the Allocation of Resources was published on the internet.  From then on, the first point of contact was to be the HR department.

Mr Lowey referred to the follow-up email the complainant sent to Ms Kiely on September 29th 2022 and her request to him to indicate where he wanted to move to.  Mr Lowey asked Ms Kiely if she took any account of the complainant’s disability at this stage.  Ms Kiely replied that she dealt with the request as a “straight mobility” request.  She said there is no indication that disability was the basis of the request.

Mr Lowey said that the Guiding Principles for the Allocation of Resources makes no reference to disability as a criterion to be considered when an employee requests a transfer.  Ms Kiely said that the criterion of “diversity and inclusion” encompasses disability.  At every meeting to consider staff mobility, Ms Kiely said that they try to balance people and experience.  She said that not every individual request is granted and that priority is given to filling gaps created by retirements and resignations.  Since the first day of this hearing on October 30th 2024, when the management became aware of the complainant’s request for reasonable accommodation, Ms Kiely said that his request is being considered.

Mr Lowey referred to the one year and seven months between the complainant’s first request and his follow-up email and he asked why no action was taken to facilitate a transfer.  Ms Kiely said that all the requests that came in for transfers were considered.  She repeated that she didn’t see the complainant’s request for a transfer as request because of a disability.  She said that he never raised the issue of a disability.

In response to a question from me, Ms Kiely referred to a schedule in the respondent’s book of documents that shows that, in September 2024, two employees had spent longer working in the District Court Section than the complainant, at 11 and seven years respectively, compared to the complainant’s six years.  The longest-serving person transferred that month and the person with seven years’ service was due to transfer in April 2025, leaving the complainant as the person remaining with the longest service.

Evidence of Mr Ray Briscoe, Head of the Directing Division

Mr Briscoe said that he was the complainant’s line manager from February 2018 until June 2019.  The complainant qualified as a solicitor in May 2017, and was qualified for just under a year when Mr Briscoe became his manager.  Mr Briscoe said that the complainant had quite a bit of experience as a legal executive, prior to qualifying.  He said that the complainant was learning his trade, and on a learning curve.  He said that he observed nothing out of the ordinary about his work.  Mr Briscoe said that he was very connected to the team of solicitors in the District Court Section and that he had a good relationship with the complainant. 

Over the course of time, Mr Briscoe said that he spoke to the complainant about what he described as the “red action list.”  He said that he sent him an email about providing more detailed instructions.  He remembers a member of the Gardaí phoning the Section looking for immediate representation in court.  He said that he told the complainant to “triage” cases and to present him with the details instead of transferring on an issue.  Mr Briscoe said that attendance at District Court Section meetings was mandatory, but the complainant didn’t always attend.  He said that these matters were not particularly significant.

Ms Ennis asked Mr Briscoe about the complainant’s absence to attend the residential treatment programme in January / February 2019.  Mr Briscoe said that he remembers that he got an email in the morning before he went out sick in which the complainant disclosed that he had been advised to take stress-related leave because of depression.  Around 2.00pm that afternoon, the complainant came to his office and said that he was going into the Rutland Centre to be treated for alcoholism. 

Ms Ennis referred to the complainant’s evidence that he was in denial about the problem and he didn’t tell anyone he was going for treatment.  Mr Briscoe replied that his recollection is that the complainant told him he was going to get treated for alcoholism. 

Ms Ennis asked Mr Briscoe if he noticed anything before the complainant told him that he had a problem with alcohol.  He said that he remembers that he had to assign files to his mentor.

The day after the complainant returned to work, Mr Briscoe said that he had a meeting with him at around 12.00pm in his office.  He said that they had a pleasant conversation and the complainant told him that he was certified as fit to return.  Mr Briscoe said that he told the complainant that he would assign work to him incrementally.  He remembers that he went to Clover Hill Prison on Tuesday and Thursday that week.  These were not court hearings, but simply for the serving of books of evidence.

Asked by Ms Ennis if the complainant raised the issue of measures of support for his disability, Mr Briscoe said that he has autonomy in the allocation of files.  He said that there was no conversation between him and the complainant about reasonable accommodation.  If there had been such a conversation, Mr Briscoe said that he would have been out of his depth and he would have contacted someone in HR.

Ms Ennis referred to the complainant’s PMDS review for 2018 which was done in March 2019.  He referred to a case that had been “mis-diarised” and to a bench warrant that had been incorrectly applied for.  In his narrative assessment, Mr Briscoe wrote:

“Michael has had a difficult end to the year 2018.  While certain work issues presented in the last couple of months, I am confident that with Michael’s positive attitude combined with the proper management supports in place, that Michael will continue in his positive development.”

Mr Briscoe replied that he had 20 PMDS reviews to carry out.  He said that he doesn’t remember something being mis-diarised, or that the complainant didn’t properly apply for a bench warrant.  He said, “we talked about red actions, which are common to new solicitors.”  He said that he discussed with the complainant the importance of asking, “what are the Gardaí looking for?” triaging the problem and working on a solution.  Mr Briscoe said that the complainant had nothing unusual to work through, his rating was “satisfactory” and he looked forward positively.  He said that he had the same conversations with others about their red action lists.

The complainant had a tendency not to attend District Court Section meetings and Mr Briscoe said that, when he didn’t attend a meeting shortly before the PMDS meeting in March 2019, he called into his office.  He said that the meetings are mandatory and not optional.

Mr Briscoe disagreed with the complainant’s evidence that he wrote the remark on the PMDS form about the difficult end to 2018 “to cover himself” because he hadn’t known that the complainant was an alcoholic.  He said that he doesn’t consider the comments to be unsatisfactory.

Cross-examining of Mr Briscoe

Mr Lowey referred to the respondent’s submission which states that the complainant went on sick leave from January 4th until February 25th 2019 and that “he did not disclose the reason for his absence at that time.”  Mr Briscoe replied that the complainant told him he was going in for treatment for alcoholism.

Mr Briscoe said that he has no expertise in the co-morbidities of anxiety and depression associated with alcoholism.  He said that he has done some training in how to support people with depression.  On the day that the complainant told him he was taking time off for the residential programme, he left at 5.30pm and Mr Briscoe said that he took no further action with regard to the reason for his absence.  He said that he didn’t want his work piled up when he came back and he thought about how he should deal with that.  As he was leaving to have treatment, he thought that he would have a conversation with him on his return.

Mr Briscoe said that he understood that the conversation he had with the complainant was entirely confidential and he didn’t inform anyone in the HR department.  When Mr Lowey asked Mr Briscoe if he didn’t consider the diagnosis of anxiety as a health and safety issue, Mr Briscoe said that this was a matter for the HR department and the CMO.  When Mr Lowey suggested that he didn’t take sufficient action, Mr Briscoe said that these issues are dealt with through HR.  He said that the medical certificate presented to him in relation to the complainant’s five weeks of absence indicated that he was suffering from anxiety.  He said that he understood that the HR department had this information, because an email with a copy of the medical certificate came to him from the HR department.

Mr Lowey gave an example of a person who has back surgery, and he asked Mr Briscoe if he hasn’t got some obligation to seek medical advice about how to manage that situation.  Mr Briscoe replied that this is a matter for the employee and the HR department and that he isn’t qualified to determine the needs of an employee who has been absent.  He disagreed that he overlooked the complainant’s health and welfare and he said that he focussed on making sure his work was done and this alleviated his stress.

Mr Lowey referred to the meetings that Mr Briscoe had with the complainant when he returned to work on February 26th 2019 and again on March 22nd.  The respondent’s submission states that Mr Briscoe offered his support and reminded the complainant of the supports available to employees.  Mr Briscoe said that, when he returned to work, he and the complainant could have had an open conversation.  He said that he needed to know if he shouldn’t be assigned to certain courts, or if he needed to avoid stressful cases.  He said that he could have contacted the HR department for guidance.

Mr Lowey asked Mr Briscoe if he wasn’t concerned that the complainant’s work might cause a relapse.  Mr Briscoe replied that the issue for him was “is he medically fit?”  He was incrementally going back to work.  He said that he is not trained in dealing with anxiety and depression.  He observed that people are different, for example, in how they handle something like bereavement.  Some want to get back to work quickly and others take their time.  If the complainant had said, “I feel under a bit of pressure, I need a more ancillary role,” Mr Briscoe said that he could have done something to relieve the pressure.

Mr Lowey put it to Mr Briscoe that he didn’t tell the complainant who the disability liaison officer in the ODPP was and that the complainant wasn’t aware who was in this role.  Mr Briscoe said that the issue didn’t come up between him and the complainant.

Mr Briscoe said that a conversation about reasonable accommodation goes two ways.  The complainant needed to have a conversation about the support he may have needed.  If there was a substantive issue presented that needed specific action or follow-up supports, the plan would be in writing.

Mr Lowey referred to Mr Briscoe’s evidence that, on the complainant’s return to work in February 2019, he didn’t have a conversation with him about reasonable accommodation.  He asked Mr Briscoe if he should not have put reasonable accommodation in place for the complainant.  Mr Briscoe replied that, when he came back, he asked the complainant what could be done to support him.  He asked him if there was anything he needed.  He reiterated the two-way nature of such a conversation and said that he wouldn’t impose something on an employee.

Mr Lowey referred to Mr Briscoe’s remarks that the complainant had a “difficult end to the year 2018” and he put it to him that, when he wrote this comment, he was aware that the complainant had alcoholism.  Mr Briscoe agreed, but he said that it didn’t occur to him that the difficulties were related to alcoholism.  He said that he understood that depression and addiction can have an impact on an employee’s performance.

Mr Lowey asked Mr Briscoe if, when he gave the complainant a “satisfactory” rating, that this took account of his disability and if he should have been treated differently.  Mr Briscoe disagreed and said that the comments “are as positive as possible.”  The only options with regard to the assessment of performance is “satisfactory” or “unsatisfactory.”  He agreed that, when he did the PMDS review for the complainant, he took no account of his disability.  He said that there was no issue with the complainant’s performance.  He repeated that he couldn’t remember the mis-diary issue or the problem with the bench warrant and he said that he recalls speaking with the complainant about triaging problems and dealing with red list actions.

In response to a question from me about precisely what the issues were that resulted in the complainant having a difficult end to 2018, Mr Briscoe said that he remembers having a heated conversation with him about his attendance at District Court Section meetings.  He had not attended meetings towards the end of 2018.  Mr Briscoe said that the complainant “wasn’t himself.”  He said that he checked with the person who was mentoring him to see how he was doing.  

Before the complainant returned to work on February 25th 2019, Mr Briscoe said that he was notified in advance and he met him at 12.00 the following day.  He said that he seemed more relaxed and said that he was doing well and he was looking forward to being back.  Mr Briscoe said that he asked the complainant, “what can I do for you?”  Mr Briscoe said that he was aware of the risk of a relapse.  He named the person who was mentoring the complainant at the time and who was sharing an office with him.  He said that he was “tuned in” to the complainant.

Evidence of the Chief Prosecution Solicitor, Mr Declan Keating

Mr Keating said that he has been with the ODPP for more than 20 years and he was the head of the District Court Section and the complainant’s line manager from April 2022 until May 2024.  He worked in the Section for seven years when he started with the ODPP, but had not been there for 10 years when he became head of the Section.  In the role, he had around 20 solicitors reporting to him, plus a number of administrative staff.

In the course of meeting staff shortly after he took on the role, Mr Keating said that he met the complainant.  The complainant raised two issues; firstly that he hadn’t been assigned books of evidence returnable to the CCC and secondly, that he hadn’t been asked to mentor anyone.  Mr Keating said that he told him he would look into both issues.  He said that the complainant wanted more responsibilities and more extensive work.  There were no other issues.  Mr Keating said that he spoke to the deputy head of the section and “we had no problem assigning him a book of evidence for the CCC.”  The complainant was assigned a rape file.

Ms Ennis referred to the complainant’s concern that he had never been assigned a murder file.  Mr Keating said that when he spoke to the complainant in April 2022, his concern was that he hadn’t been assigned a file returnable to the CCC.  The majority of cases heard at the CCC are rape cases.  In December 2022, at a meeting to discuss how he was dealing with books of evidence, the complainant asked for a murder case.  Also at that meeting, Mr Keating said that the complainant told him that he was having difficulties with compiling the files electronically.  Books of evidence for murder trials are in low numbers, and they are usually assigned to senior prosecutors or principal prosecutors.  Mr Keating said that he wanted to give the complainant an opportunity to deal with the books of evidence electronically.

Ms Ennis referred to the complainant’s evidence that he didn’t think there was anyone in the office who hadn’t been assigned a murder file.  Mr Keating said that the majority of prosecutors are not given murder files and the complainant is not unusual in this regard.  He said that around half of the solicitors in the Section have not been assigned murder books and some have not been assigned a file returnable to the CCC.  Mr Keating said that he agrees that murder files are considered the “most prestigious;” he said that they are also the most complicated, are extremely labour intensive and can take weeks or months to complete.  He said that he must consider a solicitor’s capacity and ability to take on such complicated files.

Mr Keating said that he had no difficulty assigning someone to be mentored by the complainant and the complainant was the first person to whom he assigned a mentor after he became head of the Section.

Regarding the updating of the District Court Manual, Mr Keating said that he couldn’t get this work off the ground and he didn’t assign anyone to the task.

Ms Ennis referred to an email included in the respondent’s book of documents that Mr Keating sent to all the solicitors in the District Court Section.  The purpose of the email was to arrange two meetings (due to a problem with the size of the available rooms) on May 18th and 19th 2022.  Mr Keating said that, with remote working and people attending court, the opportunity to meet staff is limited.  Another email referred to a meeting in July and Mr Keating invited the solicitors to put items on the agenda.  Another meeting took place in July.  In September, Mr Keating asked his staff “to come forward with any interesting legal cases / developments.”  He said that he considered the Section meetings to be mandatory.  The focus was on legal developments and organisational challenges.  He said that 90% of the time, he did the talking, but he also wanted to encourage others to be involved.  He said that the complainant didn’t put issues on the agenda for meetings and he didn’t contribute, although other solicitors did.

The complainant was absent from work due to stress from November 10th until December 14th 2022.  Mr Keating described this absence as unanticipated and he said that he had to check the complainant’s files or ask his deputy to check files and deal with urgent issues.  In the documents submitted for the hearing, Ms Ennis included a memorandum prepared by Mr Keating on November 30th 2022 listing six issues of concern regarding the files being worked on by the complainant before he went absent. 

The first issue concerned District Court appeals files for October 17th 2022 which had not been returned to the District Court Office so that new dates could be scheduled.  The complainant was absent from November 10th and he had the files at home.  The HR department had to contact him to arrange for the files to be returned.  Mr Keating said that this was a serious issue, particularly for appeal files that were returnable to the Circuit Court.

The second issue raised in the memo was a book of evidence that had been assigned to the complainant two months before he went on sick leave on November 10th 2022.  The case related to possession and handling of stolen property and the book of evidence was to be submitted on November 14th.  The matter was struck out when a forensic science certificate that had been requested by the complainant on October 12th had not been provided.  Mr Keating said that it is rare for a book of evidence to be struck out and that it is a serious matter from the perspective of bail and the rights of victims.

The third issue that Mr Keating referred to in the memo of November 20th 2022 was another book of evidence listed on November 14th.  There were no exhibits attached to the file, in accordance with the guidance to prosecutors to provide all documents, interview notes and photographs related to the case.  The exhibit list included two interviews, notebook entries and photographs, but they were not included in the book of evidence.  Mr Keating said that the complainant was the only prosecutor who did not include documents in books of evidence.

The fourth issue in the memo related to a rape case returnable to the CCC.  Mr Keating referred to this as a serious case, but with a relatively straightforward book of evidence.  The complainant had not followed up on a query related to the case, and the book of evidence wasn’t ready when it was due for submission on November 15th 2022.   

The fifth issue in the memo concerned a book of evidence due for service on December 7th 2022.  A book had been prepared for a co-accused, but the file couldn’t be found and another prosecutor had to prepare the book from information available on the respondent’s internal system.  Mr Keating said that the complainant should have kept a copy of the first file.

Finally, Mr Keating listed a book of evidence completed by another prosecutor that should have been done by the complainant.

Ms Ennis asked Mr Keating what the complainant’s response was when he spoke to him on December 16th 2022 after he returned to work.  Mr Keating said that it was important for him to raise these issues with the complainant.  With regard to two of the issues, keeping files at home and having a book of evidence struck out, he said that he considers these to be very serious.  He said that he asked the complainant if he needed assistance, but he didn’t ask for any.  He said that he looked for more complicated files.  Mr Keating completed a return to work meeting note which he sent to the complainant on December 21st for his comments.  The template document requires the manager to,

“Detail content of discussion if necessary, - e.g. where specific measures have been agreed to facilitate the transition back to work[.]”

In the note, Mr Keating wrote:                                                                                                                                  

“Michael and myself discussed some issues that arose while he was on leave, mainly relating to the preparation of BOEs and also the return of files (for District Court Appeals).  I said that we would consider this again in a month.  In response, Michael explained that he would like to be assigned more complex BOEs, especially for fatal offences.”

There is no evidence that the complainant added any content to the return to work meeting note or that he signed it. 

On April 4th 2023, the complainant submitted this complaint of discrimination to the WRC.   

Cross-examining of Mr Keating

Mr Keating said that, before he joined the District Court Section in April 2022, he had heard informally that the complainant was an alcoholic.  He said that the meetings he had with the complainant were always cordial.  Mr Keating said, “he never asked me for any different treatment” and he never asked to be treated differently to anyone else.  He said that he wanted more complex work.

Mr Keating said that he got no handover from the complainant’s previous manager concerning his performance.

Mr Lowey asked Mr Keating if he is aware of the co-morbidities of anxiety and depression that are associated with alcoholism.  Mr Keating replied that he is aware from his life experience.  He said that he continually asked the complainant if he needed assistance.  He said that plenty of people came to him with difficulties and he had scope to make arrangements.  He said that the complainant didn’t approach him to discuss his alcoholism.

Mr Keating agreed that, when he met the complainant initially, when he himself was a short time in the role of manager, the complainant asked to be assigned files returnable to the CCC and for someone to mentor.  Mr Keating said that the complainant wanted to take on more work and he had no difficulty with that.  He said that mentoring can be overrated in terms of what it adds to promotional prospects.

Mr Keating said that he asked the complainant what areas of work he was interested in and he assigned him a new employee to mentor.  He was also assigned books of evidence for the CCC.

Referring to the move to compile books of evidence electronically, Mr Lowey asked Mr Keating if he offered the complainant training or extra resources.  Mr Keating said that additional one to one training was offered to everyone.  He said that there was a small group of three prosecutors who provided the training.

Mr Lowey said that, in April 2023, the person that the complainant was assigned to mentor was given a murder file.  At this stage, she was with the ODPP for just eight or nine months.  Mr Keating said that he couldn’t remember the specific circumstances, but that this solicitor had six years post-qualification experience, which was around the same level of experience as the complainant.  He said that, sometimes with murder books, the accused is in custody and the clock is ticking and that the solicitor in question may have had more time than others to work on the case.

Mr Lowey reminded Mr Keating that, in his direct evidence, he said that he considered the ability and capacity of a solicitor when assigned specific work.  Mr Keating replied that the complainant had told him he had difficulties with the electronic process.  In his email of August 30th 2023, he said that he asked the complainant if he wanted to discuss any specific needs.  He said that other solicitors also had difficulties with the electronic system and he met with them.  The solicitor that the complainant was mentoring had come from a background where the use of electronic files was well established and she spear-headed the innovation.

Mr Keating said that the complainant was always pleasant and courteous, but he never came to him to seek help.

Mr Lowey referred to the memorandum of November 30th 2022.  Mr Keating said that he prepared this memo for himself to address the issues that arose when the complainant was on sick leave.  He said it was an “aide memoire” so that he had a record of the issues he wanted to discuss with the complainant when he came back.

Mr Lowey referred to Mr Keating’s note of his return to work meeting with the complainant on December 16th 2022.  Mr Keating said that the meeting with pleasant and cordial, and he asked the complainant how he was.  He remembered that the complainant didn’t seem to want to be in the room for the meeting and that he was happy to get it over with.  Mr Lowey asked him where he had recorded practical steps to support the complainant.  Mr Keating said that there is no such record.  Mr Lowey asked about recording the reason for the complainant’s absence.  Mr Keating replied that he wanted to respect his privacy.  He said that he would never ask someone, “why are you sick?”  He said that he asked the complainant how he was and if there was anything he could do to help him.  If the complainant had wanted to talk, Mr Keating said that he would have been comfortable with that.  Mr Keating said that he was not aware of the extent of the complainant’s disability and that he had only heard a rumour about it around two years previously.

Mr Lowey referred to the return to work note and his remark that he told the complainant that they would discuss the issues again in a month. Mr Keating said that he never got around to resuming the discussion.  Mr Lowey asked Mr Keating if he thought it was fair to raise performance issues at a return to work meeting and Mr Keating said that the purpose of the meeting was to discuss issues that came up while the complainant was absent.  He said that it wasn’t a performance assessment and that it was incumbent on him to explain what happened with the files that had been assigned to the complainant.

As he was going to be conducting the complainant’s performance review, Mr Lowey suggested to Mr Keating that he had a duty to be aware of his disability.  Mr Keating said that he gave the complainant a satisfactory rating.  He said that he continually asked him how he was.

Mr Lowey referred to the District Court Section of the ODPP as a “high pressure environment.”  Mr Keating agreed, but he said that it is also very rewarding and fulfilling work.  He said that colleagues get a lot of support and help from each other and that mentoring and coaching is available.

Now that he knows about the extent of the complainant’s disability, Mr Lowey asked Mr Keating if he thinks he should have done more to assist him.  Mr Keating replied that the message he was getting from the complainant was that he wanted more complicated work.  If Mr Lowey is suggesting that allowances should been made, Mr Keating said that the complainant didn’t look for special treatment.  Mr Keating said that it appears that he is being criticised for not making allowances for the complainant, and that he is also being criticised for not allocating more complex work to him.

Evidence of the Disability Liaison Officer, Ms Pamela O’Connor

In reply to questions from Ms Ennis, Ms O’Connor said that she has worked for the respondent since 1998.  She was promoted in February 2022 and now works in recruitment and organisational development.  She is the disability liaison officer. 

Ms O’Connor explained that, when an employee is absent, the line manager inputs the date that the absence commences on the HR system, known as “PeoplePoint.”  When an employee is out for four weeks continuously, the HR department refers them to the CMO for a consultation.  Ms O’Connor said that she did that when the complainant was absent in January / February 2019.

Ms Ennis referred to the letter from the occupational health nurse in the CMO’s office dated March 6th 2019 which was included in the respondent’s book of documents.  The letter makes no reference to the complainant’s disability and no reference to a requirement for reasonable accommodation.  Ms O’Connor said that she wasn’t aware of the reason why the complainant was absent and that it was up to him to disclose if he has a disability.  She said that new employees are required to fill out a declaration, where the onus is on them to declare if they have a disability.  She said that this form is given to the disability liaison officer.  The employee’s line manager is not informed, unless there is a health and safety risk associated with the employee’s disability.  If reasonable accommodation is provided, the line manager is informed only if the employee consents.  Ms O’Connor said that it may not always be apparent to a manager what reasonable accommodation is available to an employee.  While 6% of the respondent’s employees have declared that they have a disability, she said that not all require reasonable accommodation, although she said that many employees have been facilitated with reasonable accommodation.  Ms O’Connor said that, in most circumstances, the employee will contact her for a discussion about their requirements.  If the manager needs to be involved, she meets the employee’s line manager, then she might meet both together.

Ms O’Connor said that she wasn’t approached by Mr Murphy with regard to a request for reasonable accommodation.  Ms Ennis asked Ms O’Connor how people might know about her existence.  She replied that they are informed at induction, there’s a piece on the intranet, they have a “day of disabilities” during which her role is featured.  She also said that her predecessor sent out an email to announce her appointment.  Finally, she said that the CMO might suggest to employees that they should contact her.

Ms Ennis referred to the complainant’s email to Ms Kiely on February 11th 2021 in which he expressed an interest in a move from the District Court Section, and his subsequent request on September 29th 2022.  On September 30th, Ms O’Connor said that she sent the complainant a standard email in response, in which she told him that his request had been recorded on an internal mobility tracker.

Ms O’Connor recalled that, in January 2022, the complainant raised a concern about his PMDS review for 2018, which was completed in March 2019.  She said that this form couldn’t be submitted for review because the complainant had signed and accepted it.  In 2022, she recalled that the complainant again sought a review of his manager’s comments, but he was only permitted to seek a review of the rating.  Ms O’Connor said that this is in accordance with the General Council guidance on how PMDS reviews are to be carried out.

Ms Ennis asked Ms O’Connor about the complainant’s application for the role of senior prosecutor.  Ms O’Connor said that 16 applicants for the role were not shortlisted for interview.  Of this group, 14 asked for feedback.  They were given a copy of their application score and invited to seek oral feedback.  The complainant didn’t look for any further feedback.

Ms O’Connor said that the HR department was never informed about problems with the complainant’s performance, although there is a process in place for a manager to initiate action to deal with performance issues.

Ms Ennis asked Ms O’Connor about the complainant’s assertion that no one is trained in how to deal with disability or mental health issues.  Ms O’Connor replied that the HR department constantly sends out emails about training opportunities and webinars on the issue of disability, positive mental health and general wellness.  In a supplementary booklet, Ms O’Connor referred to a list of webinars on remote working during Covid-19, “how to be well,” “our overall mental health” and other information sent to employees on April 17th 2020.  She referred to a talk on “building resilience” delivered by the employee assistance officer in the Civil Service on November 25th 2020.  She referred to an email sent to all staff on December 8th 2021 advising them about changes in the contact details of the employee assistance service.  On April 20th 2022, staff were sent a list of webinars on a variety of topics including “your personal, physical and mental wellbeing” and on “managing stress and building resilience.”  On November 30th 2018, Ms O’Connor’s predecessor in the role of disability liaison officer sent an email to all staff informing them of her impending maternity leave and about Ms O’Connor’s appointment.  In her email, she said,

“If you have a disability, and wish to discuss specific needs or supports you require, please discuss with your own line manager or contact the Disability Liaison Officer (DLO) for the Office.”

Cross-examining of Ms O’Connor

In response to a question from Mr Lowey, Ms O’Connor said that, when the complainant was referred for an examination by the CMO in February 2019, she didn’t know why he was out sick.  The referral form states that the reason for the absence was “undisclosed.”  Ms O’Connor said that the HR department doesn’t ask managers why their staff are absent and the complainant’s line manager at the time, Mr Briscoe, didn’t reveal why he was out sick. 

Mr Lowey suggested that, once the employer is on notice that an employee has a disability, this should give rise to a sequence of events to support the employee.  Ms O’Connor replied that she had no information about the complainant’s disability.  She said that she assumes that he told the occupational health nurse, but the nurse did not inform her or the HR department.

Mr Lowey said that the complainant’s evidence is that he had no discussion with the occupational health nurse about reasonable accommodation.  He asked, how could she form a view about what he needed.  Ms O’Connor replied that it was up to the complainant to answer that question.  She said that she became aware of his disability sometime in 2022.

Mr Lowey asked Ms O’Connor if she is aware that the complainant was required to write to the former HR manager in September 2019 and to tell her about his alcoholism.  Ms O’Connor replied that she understood that the former HR manager dealt with the complainant’s grievance about not being paid his increment in 2019.

Mr Lowey asked Ms O’Connor if, to her knowledge, the complainant asked for the fact of his disability to be confined to one or two people.  Mr Lowey put it to Ms O’Connor that the complainant didn’t ask for his condition to be kept confidential.  He said that the problem with this is that the information was withheld and there was no assessment of the complainant’s needs.

Ms O’Connor replied that, when someone looks for reasonable accommodation, they reach out and look for it.  Mr Lowey asked, “should the employer not reach out?” and Ms O’Connor replied that she can’t do anything unless she is informed about a problem.

Mr Lowey returned to the email the complainant sent to Ms Kiely on February 11th 2021 in which he said that the was “interested in a move from the District Court.”  Ms O’Connor said that this email wasn’t sent to her, but that she doesn’t see it as a request for reasonable accommodation.  Mr Lowey referred to the email the complainant sent to Ms Kiely on September 29th 2022 in which he repeated his interest in moving.  Ms O’Connor said that she replied to this email and she told the complainant that his request was recorded on the mobility tracker.  She said that, looking at the February 2021 and September 2022 emails, she doesn’t see them as a request for reasonable accommodation.  She disagreed with Mr Lowey that the emails should have prompted her to put in place some reasonable accommodation.  She said that she asked the complainant to indicate where he would like to be transferred to and what sections he had worked in previously.  In his reply, he said that “the only place I am really interested in transferring to is the Directing Division.”

Mr Lowey asked Ms O’Connor what steps she took when she was informed that, in April 2023, the complainant made a complaint about discrimination.  Although, on the form he submitted to the WRC, the complainant said that his employer had failed to provide him with reasonable accommodation for a disability, Ms O’Connor said that she wasn’t aware that the complainant made a request for reasonable accommodation.

In April 2024, Ms O’Connor said that she discussed with the complainant the possible payment to him of critical illness pay.  In May, she met him to discuss work.  She said that she received a copy of the report of Professor Jo-Hanna Ivers and she contacted the complainant and they have discussed reasonable accommodation.  At the first day of the hearing, on October 30th 2024, Ms O’Connor said that it became apparent how the complainant needed reasonable accommodation.  He wasn’t available to meet Ms O’Connor until January 2025.

Before this complaint, Ms O’Connor said that she wasn’t aware of the complainant’s need for reasonable accommodation.  Even if a manager is aware that an employee has a disability, they will not inform the HR department without the employee’s consent.

Mr Lowey asked Ms O’Connor how a manager would know how to ask for reasonable accommodation for an employee.  Ms O’Connor said that a manager could contact her.  She disagreed with Mr Lowey that she had a responsibility to contact people with disabilities.  She said that not everyone needs support.

The Legal Framework

The legal framework prohibiting discrimination on nine specific grounds is set out at section 6(1) of the Employment Equality Acts 1998 – 2015:

“…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’…”

At subsection 6(2)(g), “the disability ground” islisted as one of the nine discriminatory grounds.

It is the complainant’s case that, when his employer came to know that he was an alcoholic, he was treated less favourably compared to others in his workplace.  He gave the following examples of treatment that he considers to be less favourable:

1.       His salary increment due in March 2019 was paid in January 2020 only after he engaged a solicitor to argue that he was entitled to the increment;

2.       He considers the remarks made by his manager on his PMDS review forms for 2018 and 2021 to be discriminatory;

3.       In February 2021, he wasn’t permitted to attend a legislative drafting course;

4.       In December 2021, the complainant wrote to a member of management to ask him to desist from making remarks about his mental health;

5.       Until Declan Keating became his line manager in April 2022, the complainant was never assigned a book of evidence returnable to the CCC;

6.       He has never been assigned a book of evidence for a murder trial, unlike some solicitors who joined the District Court Section after he joined in 2017;

7.       Until 2022, the complainant had never been assigned a new employee to mentor;

8.       The complainant’s offer to update the District Court Manual wasn’t taken up;

9.       He complains that he wasn’t invited to contribute to District Court Section meetings.

The substance of the complainant’s claim is that he was discriminated against because, by not transferring him out of the District Court Section since he requested a transfer in February 2021 and again in September 2022, he has suffered due to the pressure of the work in that Section.  He claims that this pressure exacerbates his anxiety and depression which are co-morbidities of the condition of alcoholism.  He claims that the failure of the respondent to move him out of the Section is a breach of s.16 of the 1998 Act, the requirement of an employer to provide reasonable accommodation for a person with a disability. 

The Burden of Proof

Ms Ennis pointed to s.85A of the 1998 Act which transposes into Irish law Article 19(1) of EU Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.  Sub-section (1) of s.85A states:

“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.  Ms Ennis cited the decision of the Labour Court in Mitchell v Southern Health Board[14]wherethis “evidential burden” was described.  She then referred to the Court’s decision in Melbury Developments Limited v Arturs Valpeters[15], which 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.  I must then consider his claim that the respondent failed in its obligation to provide him with reasonable accommodation.

Consideration of the Primary Facts

There is a dispute between the complainant and the respondent concerning when his manager in 2019, Mr Ray Briscoe, came to know that he was an alcoholic.  Mr Briscoe recalls that the complainant told him the day before he went on sick leave on January 4th 2019 to attend the residential treatment programme.  The complainant said that he told him when he finished the programme and had returned to work.  In any event, Mr Briscoe knew at the end of February 2019.  In a discussion with Mr Briscoe in the days after he returned to work, the complainant said that he told Mr Briscoe that he wouldn’t be telling the HR department the reason for his recent absence.  Mr Briscoe seems to have had no issue with this.

Shortly after he returned to work in February 2019, the complainant attended for a consultation with the occupational health nurse in the CMO’s office.  He said that the meeting was brief and that he told the nurse the reason for his absence and he said that he didn’t need any special accommodation.  He said that he was feeling well at the time and he described the weeks after his residential treatment as a period of serenity.

I now wish to address the issues that the complainant refers to as incidents of discrimination.

2019 Increment

In March 2019, the complainant’s increment was withheld, not because he was absent in January – February that year due to his disability, but simply because he was absent for six weeks.  He had not told the HR department that he was going for treatment for alcoholism.  The case referral form for the CMO states that the reason for his absence was undisclosed, although, in his evidence, the complainant said that he told the HR department that he was suffering from anxiety.  When Helena Kiely was informed about the reason for his absence, she instructed the HR department to pay the increment and to back-date it to March 2019.  This was done in January 2020.  The reason for the delay was because the complainant hadn’t told the HR department why he had been absent.  It is my view that, rather than an incident of discrimination, the decision to pay the complainant his 2019 increment, despite his absence from work for six weeks, was reasonable, in light of his decision to go for treatment for his addiction.  The delay in the payment of the increment arose because of the failure of the complainant to notify the HR department that he had a disability.  

Narrative on the 2018 and 2021 PMDS Reviews

In March 2019, Ray Briscoe wrote on the complainant’s PMDS form that he “had a difficult end to the year 2018.”  In 2022, the complainant decided to ask for a review of this narrative and his request was declined, on the basis that a manager’s narrative is not subject to review. 

The complainant claims that this reference to a “difficult end to 2018” was inserted by Mr Briscoe in March 2019 to give the impression that he noticed that the complainant was an alcoholic.  In his evidence, Mr Briscoe said that the complainant was qualified for just over a year at the end of 2018 and he was on a learning curve.  He said that he advised him to “triage” issues and to deal with “red actions.”  In this regard, Mr Briscoe said that the complainant was in the same situation as other newly qualified solicitors.

In March 2022, in his own feedback on his PMDS review for 2021, the complainant wrote down a list of issues that he wasn’t happy about, including the assignment of books of evidence for the District Court, the fact that he hadn’t been assigned anyone to mentor and his impression of that there was a disparity in the distribution of tasks.  In his narrative, Mr Briscoe responded and wrote that the complainant had “worked well over the last year to manage a significant workload, which has been overwhelming at times.”   The complainant sought a review of Mr Briscoe’s remarks and his request was rejected, again because a manager’s remarks cannot be reviewed.

I see no inference of discrimination in Mr Briscoe’s remarks (see page 9 above).  They reflect the complainant’s evidence that there was a significant increase in the workload in the District Court Section after Covid-19.  Ms Kiely’s evidence was that most people were overwhelmed in 2021 and 2022 and it seems to me that the complainant’s predicament in this regard was no different to anyone else in the Section.

I find that there was no discrimination in the remarks made by Mr Briscoe on the PMDS forms for 2018 and 2022 and that no discrimination arises from the respondent’s position that the manager’s remarks cannot be reviewed.

Failure to Accept the Complainant’s Expression of Interest in a Legislative Drafting Course

All but one of the 19 people who applied to do this course were not permitted to attend.  In her evidence, Ms Kiely said that the subject of the course was not relevant to prosecution solicitors and the course was in the UK for one week.  No discrimination arises from the respondent’s decision in this regard.

Disparaging Remarks of a Manager

The complainant never raised his concern about the alleged remarks made by an un-named manager about his mental health.  He could have reported this at the time to the HR department or to his manager as a grievance, or as a complaint of harassment or bullying, but he failed to do so.  The respondent became aware of this allegation only when this complaint was submitted to the WRC.  The complainant has failed to make a connection between the alleged remarks and his claim that he has been discriminated against, and I find that there is no substance to this aspect of his complaint.

Failure to Assign a Book of Evidence Returnable to the Central Criminal Court

At the hearing, I learned that the District Court Section, where the complainant works, deals with a small number of books of evidence that are returnable to the CCC, and that it is rare for a solicitor in the District Court Section to be assigned a murder book.  It seems to me therefore, that in the early years post-qualification, it wouldn’t be usual for a solicitor to be assigned a book of evidence returnable to the CCC and certainly not in respect of a murder trial.  In April 2022, the complainant had been qualified for almost five years and he asked his manager at the time, Declan Briscoe, to assign him a book returnable to the CCC.  Mr Briscoe assigned three CCC books to the complainant, all three of which were concerned with rape.

In 2023, of the 58 books of evidence returnable to the CCC, 14 were murder cases.  That year, there were 25 solicitors in the District Court Section, and so, with regard to the assignment of murder books, the complainant must have been in the same boat as at least 10 of his colleagues.  It seems that his complaint is that people who are younger than him, with less service in the ODPP and “a girl,” were assigned this more complex work.  While this may be true, the complainant made no connection between his disability and the fact that, when came to the assignment of murder cases, he was treated the same as 10 others.

Failure to Assign the Complainant an Employee to Mentor Until April 2022

In April 2022, when he complained to Ray Briscoe that he had never been asked to mentor a new employee, Mr Briscoe gave the complainant a colleague to mentor.  At this point, the complainant wasn’t five years post-qualification, most organisations had struggled through two years of Covid-19 and not everything was normal.  He was assigned a new employee to mentor soon after he requested one.  If he had asked sooner, he may have been assigned someone before April 2022.  Nothing discriminatory arises from the fact that the complainant wasn’t assigned someone to mentor until April 2022.

The District Court Manual and Contribution to Section Meetings

Regarding the updating of the District Court Manual, in Mr Keating’s evidence, he said that, due to pressure in the Section, he didn’t get this work done and it was eventually assigned to a deputy head.  The fact that the complainant’s offer to update the manual wasn’t accepted is not, in my view, connected to the fact that he suffers from alcoholism.  The work was ancillary to the job of a prosecution solicitor.  The complainant had expressed concerns about the additional pressure of having to present books of evidence in electronic format, and it seems to me that, rather than give him extra responsibilities, Mr Keating decided that the complainant had enough to do to manage his own job.

In his evidence, Ray Briscoe said that his view is that attendance at District Court Section meetings was mandatory.  He said that the meetings were an opportunity to discuss developments in the law and interesting cases that prosecutors were dealing with.  He said that the complainant rarely attended the meetings, although he instructed him to attend.  The complainant’s line manager from April 2022 said that, before each section meeting, he sent the solicitors an email asking them if they wanted to speak about anything that could be added to the agenda.  He said that the complainant didn’t offer to contribute to the meetings.

In respect of these two matters, the facts do not show that the complainant was discriminated against due to his alcoholism.

Conclusion Regarding the Complaint of Less Favourable Treatment

I have considered the complainant’s case that, with regard to the nine specific allegations described above, he was treated less favourably than others who do not have a disability such as alcoholism.  I do not accept this contention, and I find that, in the main, the complainant’s allegations are speculative and based on a lack of trust in his managers and in the organisation overall.  While I accept that he feels very negative about his employer, it is my view that his predicament is not caused by unfavourable treatment due to his alcoholism.  On the basic facts, I am not satisfied that he has shown that he has been discriminated against, and therefore, with regard to this element of his complaint, the burden of proving that discrimination has not occurred does not shift to the respondent. 

I will now move to consider the complainant’s claim that the respondent failed to provide him with reasonable accommodation for his disability.

Reasonable Accommodation for a Disability

The obligation of an employer to provide “appropriate measures” to a person with a disability to enable them to take up a job, or to continue in employment, is set out at s.16 of the 1998 Act.  This legislative provision has evolved from s.16(1), where the focus was on the job and the conditions under which it was to be performed, to an obligation on the employer, inserted at subsections (3) and (4) by the Equality Act 2004.  At s.16(1), the onus is on the employee to demonstrate that they are capable of doing the job and there is no obligation on the employer to take any action to make that happen:

(1) Nothing in this Act shall 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.

Subsection (2) is not relevant to the consideration of this complaint.  Subsections (3) and (4) have the effect of “carving out an exception” (see paragraph 84 of Nano Nagle) to section 16(1) by the introduction of the requirement for appropriate measures to support the employment of a person with a disability:  

(3)(a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability -

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(4) In subsection (3) -

‘appropriate measures,’ in relation to a person with a disability -

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but 

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself[.]

(The remainder of this subsection (c) is not relevant to this complaint).

It is apparent that the intention of this amendment is to place an obligation on an employer, subject to the “disproportionate burden” criterion, to put in place certain measures to enable a person with a disability to be “fully competent to undertake any duties, if they would be so competent on reasonable accommodation.”

Most of the jurisprudence concerning the application of ss.16(3) and (4) of the 1998 Act, including Nano Nagle, is concerned with dismissal.  The complainant was not at risk of dismissal and his case is that he was seeking a transfer to a different division, so that he might be relieved of some of the pressure of high-volume, homogenous work and to increase his prospects for promotion.  This aspiration is in line with s.16(3)(b)(ii) above, which requires an employer to have measures in place to support a person with a disability to “advance in employment.”

Findings

At no point did the complainant say to any of his managers, “I’m finding it hard to manage the depression and anxiety associated with my addiction and I need a move out of the District Court Section.”  This is disappointing and I accept from his evidence that he would do things differently today.  His motivation for asking for a transfer was two-fold; he wanted to progress in his career and the work in the District Court Section was causing him to feel under pressure and was exacerbating his anxiety.  Considering the evidence of the DLO, Ms O’Connor, it seems that a frank discussion and an honest request for a change for health reasons may have avoided the need for this long-drawn-out complaint.  It is significant also that the complainant submitted no medical evidence to his employer to indicate that a move to another division would help him to manage his condition. 

I accept the complainant’s position that, when he met the occupational health nurse at the end of February 2019, he was feeling well after his treatment and he didn’t feel that he needed any specific accommodation to support his return to the workplace.

Two years later, in an email to Helena Kiely on February 11th 2021, he said that he was interested in a move because “the atmosphere in the section at the moment isn’t conducive to dealing with the already significant pressure we are experiencing.”  In her evidence, Ms Kiely said that, one year into Covid-19, everyone was under pressure and she didn’t interpret this request as being related to the complainant’s alcoholism.  In his own evidence, the complainant said that his manager had a problem with a book of evidence that he hadn’t completed when he took holidays in January 2021 to look after his children who were at home due to Covid-19.  He felt that cases were not being distributed equally and that he was assigned files that were not helpful from the point of view of career advancement.  In response to a further email from Ms Kiely the same day in February 2022, the complainant narrowed his preference for a move to the International Unit.  Ms Kiely said that she would keep a note of this.

In this back-and-forth email correspondence, the complainant had an opportunity to tell Ms Kiely that he needed a transfer because he was suffering from anxiety.  He didn’t explain why he wasn’t forthcoming about his specific needs and it seems to me that, retrospectively, he is seeking to attribute a meaning to his request that was not his meaning at the time.  From his evidence, it is apparent that his relationship with his manager in January / February 2021 wasn’t the most positive and he felt that he would be better away from that “atmosphere.”  While his request for a move wasn’t unreasonable, it was not a request for reasonable accommodation.

In February 2022, when the complainant met Ray Briscoe to discuss his 2021 review, he wrote in the narrative of his report that he didn’t want to continue to work in a section where he wasn’t progressing.  For someone seeking help to manage a disability in the workplace, this meeting with Mr Briscoe was an opportunity for the complainant to put his cards on the table, so to speak, and to tell him that working in the District Court Section was having an effect on his wellbeing.  It is evident from what he wrote on his review form that he felt that he was being deprived of the opportunity for progression and his focus was on work that might contribute to promotion.    

In his email to Ms Kiely on September 29th 2022, when he repeated his request for a move from the District Court Section, the complainant narrowed his options further and said that he was “only really interested in transferring to … the Directing Division.”  He said that he had worked in most other sections, apart from International, Policy and Research.  Most managers would interpret this request as a desire to work in a different division and to get new experience.  

It is apparent from his evidence that the complainant had difficulties with certain aspects of his job.  He said that he found compiling books of evidence electronically to be onerous and time-consuming.  He found his work repetitive and lacking in variety.  Towards the end of 2022, he said that he felt completely overwhelmed and he took five weeks off.  We know from the memo compiled by Declan Keating on November 30th 2022, that Mr Keating had concerns about some of the files that the complainant was working on which had not been completed to his satisfaction.

On December 16th 2022, when he returned to work, the complainant had a meeting with Mr Keating.  In his evidence, he said that Mr Keating asked him how he was but didn’t ask him why he was absent.  Mr Keating’s evidence is that he felt that the complainant didn’t want to be in the room for the meeting.  He said that he went through the files about which he had concerns and he asked the complainant if he needed assistance.  He said that the complainant didn’t ask for support but said that he wanted to work on more complicated cases.  To any reasonable individual in the same circumstances as the complainant, it seems to me that this meeting was an opportunity to tell his manager how he was feeling and to ask for support.

How is an employer to deal with an allegation that they have failed to provide reasonable accommodation when the employee hasn’t specifically requested such accommodation?  In support of the complainant’s position that he was not required to ask for reasonable accommodation, Mr Lowey referred to the opinion of the Advocate General of the Court of Justice of the EU in Carlos Enrique Ruiz Conejero v Ferroser Servicios Auxiliares SA and Ministerio Fiscal (citation at footnote 13).  At paragraph 37 of this Opinion, delivered in October 2017, the Advocate General held that “the obligation will be triggered when the employee has told his employer of his disability and its extent, together with all relevant surrounding circumstances.” 

The case submitted to the Advocate General for his Opinion concerned Mr Ruiz Conejero, a cleaner, who was dismissed in July 2015 due to his absenteeism.  In September 2014, he had been recognised as having a disability by the equivalent of the Department of Social Protection here in Ireland.  It appears from the Opinion that Mr Ruiz Conejero was disabled due to obesity and degenerative joint problems.  On the medical certificates he submitted to his employer, his doctor stated variously that he had lumbago, dizziness / nausea and acute pain.  Before he was dismissed, he did not inform his employer that he had a disability, but, following his dismissal, he argued that his absences were caused by his disability and that, for this reason, his dismissal was discriminatory.

The crux of the issue for consideration by the Advocate General was the dismissal of Mr Ruiz Conejero in circumstances where he didn’t disclose that he had a disability, but that his employer reasonably ought to have been aware of his disability and could have put in place some accommodation to assist him to remain at work.  Although dismissal is not a consideration in the complainant’s case, there is some similarity with Mr Ruiz Conejero’s circumstances, because, although he informed his employer that he suffered from stress, and the HR department had been informed that he had been treated for alcoholism, the complainant didn’t refer to his illness as a disability and he didn’t specifically ask for support to help him to do his job.

Conclusion

I agree with Mr Lowey that, throughout the period from February 2019 until this complaint was submitted to the WRC in April 2023, the respondent’s approach to the complainant’s condition of alcoholism was somewhat detached.  All three managers who gave evidence on behalf of the respondent knew that the complainant is a recovering alcoholic.  The HR department was aware from 2019, when a solicitor contacted them to argue for the payment of his 2019 increment, although I accept that there may have been changes in personnel since that date.  In November 2022, the complainant was absent for five weeks due to anxiety.  Considering his service of 22 years, his history of  having been treated for alcoholism, and the problems identified by his manager, Declan Keating, when he was absent, it is my view that a meeting should have been arranged with someone from the HR department to find out why the complainant had been absent, if his work was a contributory factor and what could have been done to help.  It is regrettable that action was taken only when the hearing of this complaint opened in October 2024.

Considering the complainant’s conduct, I am satisfied that information was available to him, particularly after the onset of Covid-19, about how to manage stress in the workplace and that he was informed about the role of the disability liaison officer.  He didn’t ask for support, but he consistently looked for more complex work.  He gave the impression that he wanted to move on in his career, not that he was struggling to manage his anxiety.  He narrowed the options regarding where he wanted to move.

In the same way that he advocated for himself when he wasn’t paid his increment in 2019, it was open to the complainant to contact someone in the HR department to explain that he was struggling with anxiety and that he needed a move for health reasons.  I find this failure to communicate with his employer to be a serious flaw in his claim that he was discriminated against when no support was provided.  While the respondent was aware of his condition, the complainant provided no information regarding the extent of his disability or the “relevant surrounding circumstances” as described in the Advocate General’s Opinion referred to above.  For this reason, I have concluded that the obligation on the respondent to provide reasonable accommodation was not triggered.

I note the remarks of Mr Justice McMenamin at paragraph 105 of the Nano Nagle decision that,

“…as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the [EE] Act.  But absence of consultation cannot, of itself, constitute discrimination under s.8 of the Act.”

Consultation works both ways.  Although he had many opportunities, the complainant did not consult with his employer about what he needed to support his disability.  I find therefore that no discrimination arises from the failure of the respondent to transfer him from the District Court Section.

Based on the conclusions set out above, I am satisfied that the respondent has rebutted any inference of discrimination in relation to the claim of discrimination and the application of s.16 of the Employment Equality Acts 1998 – 2025 concerning reasonable accommodation.  I decide therefore, that the complainant’s case is not well founded.

Discrimination, disability, alcoholism, promotion