Complainant

Respondent

Anonymised Parties

Operations Manager

Contract Cleaning Company

Representatives

Self-Represented

Ms. Naledi Bisiwe, IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00068364-001

30/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00068364-002

30/12/2024

The Complainant commenced employment with the Respondent on 11th July 2023. The Complainant is a permanent, full-time member of staff, in receipt of an average weekly payment of €646.15. The Complainant remained an employee of the Respondent on the date of the referral of the complaint form.

On 30th December 2024, the Complainant referred the present complaint to the Commission. Herein, she alleged that the Respondent failed to make a reasonable accommodation for her disability and that the Respondent discriminated against her in relation to the same. In this regard, the submitted that she disclosed a disability to her manager, who was dismissive of her concerns and refused to make any form of accommodation for the same. The Complainant further alleged that the Respondent prevent her from returning to work, causing her a loss of earnings. By response, the Respondent denied these allegations, stating that the Complainant did not put the Respondent on notice of any disability at the relevant time.  

A hearing in relation to this matter was convened for, and finalised on, 23rd May 2025. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing, said submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of her complaints, while a Director of Cleaning gave evidence in defense. All evidence was given under oath or examination and was opened to cross examination by the opposing party. In circumstances whereby the decision below will describe the Complainant’s medical history, I have utilised by discretion to anonymise the decision in its published form.

No issues as to my jurisdiction to hear the complaints were raised at any stage of the proceedings. 

The Complainant commenced employment with the Respondent on 11th July 2023. At all relevant times the Complainant’s role was described as “operations manager” within their cleaning division. Her duties involved overseeing cleaning operations across several key locations on Dublin’s northside, most notably Dublin Airport. The Complainant stated that for approximately the first year of her tenure no issues arose, that she was satisfied with her terms and conditions and the Respondent raised no concerns regarding her performance.

The Complainant asserts that this situation changed following the appointment of a new Director of Cleaning in July 2024. Shortly following this appointment, the Director met with the Complainant and informed her of a unilateral decision to reassign her to alternative sites. The Complainant objected to this change, citing her significant commitment to and successful management of her existing contracts.

At this juncture, the Complainant also raised specific medical concerns, stating that certain high-stress roles were inadvisable for her health. She explained that she was in recovery from cancer and had been advised by her medical practitioners to avoid high-stress environments, such as the one the Respondent intended to place her in.

Approximately one week later, the Director of Cleaning called the Complainant to another meeting. During this encounter, the Complainant alleged that he shouted at her, threatened her with dismissal, and unequivocally stated that he 'did not care about her illness'. These statements were reportedly repeated multiple times in a hostile and aggressive tone. The Complainant was visibly distressed and intimidated during the meeting and left, feeling unable to continue under such conditions.

Following her return from annual leave on 26th September 2024, the Complainant raised these concerns with HR. A follow-up meeting was then arranged between HR and the Director of Cleaning. At this meeting, the Director again repeated his disregard for her concerns and demonstrated no willingness to accommodate the Complainant in relation to the same. Despite this, the Respondent took no effective action to protect the Complainant or accommodate her situation.

On 22nd August 2024, the Complainant issued a formal grievance concerning the inappropriate behaviour she had experienced from the Director of Cleaning. Subsequently, the Complainant was invited to a formal grievance meeting concerning these allegations, chaired by a member of the HR department. Despite her setting out all the allegations in detail, the Respondent refused to take any meaningful action or follow up. In this regard, they simply stated that the manager in question was entitled to unilaterally amend her contract of employment, thereby demonstrating a complete disregard for her health and wellbeing. Furthermore, they took no action regarding the specific discriminatory statements attributed to the Director of Cleaning.

The Complainant submits that the Director of Cleaning’s statement, to the effect that he did not care about her medical condition, constituted direct discrimination on the grounds of disability as prohibited by the relevant Act. In addition, the Complainant contends that the Respondent failed to provide a reasonable accommodation for her illness, as specifically requested by her medical practitioners. The Complainant stated that the Respondent continued to place her in a high-stress environment, which has had an ongoing and extremely detrimental effect on her health.

Regarding the questionnaire opened by the Respondent in their submission, the Complainant accepted that she did not disclosure her disability on this document. In evidence, the Complainant stated that she was concerned that she would not be appointed to the role if she disclosed her illness at the outset of the employment.

In view of the foregoing facts, the Complainant asserts that her complaint should be deemed to be well-founded.

The Respondent strenuously denied the allegations raised by the Complainant on both a substantive and procedural basis.

The Respondent accepted that the Complainant commenced employment on 11th July 2023. On this date, the Complainant completed a pre-employment health declaration, which is issued to all employees upon commencement of their employment. This declaration specifically inquired as to whether the Complainant had any medical issues that might affect her ability to undertake the role, whether she had received medical treatment or investigations that might affect her ability to undertake the role and whether she required any special adjustments to meet the requirements of the role. The Complainant answered 'no' to each of these questions and signed the document on the date her employment commenced.

The Respondent accepted that the Complainant worked at sites across the north side of Dublin, including Dublin Airport, and performed well in her role. They further accepted that a Director of Cleaning was appointed in approximately July 2024 and shortly thereafter met with the Complainant.

In evidence, the Director of Cleaning stated he was appointed with the aim of implementing efficiencies in the way the Respondent conducted its business. He stated that the Complainant was a well-regarded employee and that her managerial skills would be required to manage contracts across the area. He confirmed that the decision to assign the Complainant to new contracts was part of an ongoing review of all business contracts, and that such an amendment to duties was provided for within the Complainant's contract of employment.

The Director of Cleaning stated that he met with the Complainant informally following his appointment. He claimed this initial meeting was brief and amicable, with the parties introducing themselves and discussing the role's requirements.

He stated that he then met with the Complainant again and advised her of the potential relocation from the airport contract to a bank contract within the same area. The Complainant reacted extremely negatively to this, stating that if the proposed amendment to duties was implemented, she would resign and take staff members with her. The Director of Cleaning stated that this language was inappropriate for such a meeting and reiterated that the amendment to her duties was permissible under her contract of employment.

The parties met for a third time in August 2024. During this meeting, the Director of Cleaning reiterated the business’s right to reassign staff to other roles as required. The Complainant again expressed her deep dissatisfaction, stating she would commence a period of sick leave and commence litigation against the Respondent if the amendment was undertaken.

At this point, the Complainant stated that being put onto these new roles, and the stress associated with them, might impact her health. In response, the Director of Cleaning stated that he did not believe it would, noting that it did not impact her in the performance of her duties. He asserted that the Complainant did not formally disclose any medical conditions at this point but merely suggested that stress might affect her health in the future.

The Complainant subsequently issued a formal grievance relating to these matters in August 2024. She was invited to an informal grievance meeting, which did not resolve the issues, and then a mediation meeting, which was also unsuccessful. Subsequently, she was invited to a formal grievance meeting on 26th September 2024, at which the Complainant had both a witness and a translator present.

During this meeting, the Complainant detailed her dissatisfaction with the proposed amendment to her duties. She also alleged that the Director of Cleaning had unfairly damaged her reputation regarding unsubstantiated complaints on other matters. While the Complainant alleged that the Director of Cleaning stated he did not care about her health conditions, she again did not disclose the actual nature of these health conditions.

The Respondent issued an outcome on 12th December 2024, dismissing the Complainant's grievance. In this regard, the Respondent asserted that all employees, particularly those in operational management roles, have a clause for flexibility and mobility in their contracts. Regarding the health issue, the Respondent accepted that the Director of Cleaning may have used the words that he did not care about her health but stated that this was a response to alleged threats by the Complainant to take indefinite leave and legal action. The Respondent offered a right of appeal for this decision, which the Complainant did not avail of.

Furthermore, given the Complainant had raised issues about her health at the relevant time, the Respondent arranged an Occupational Health assessment. A report was duly issued on 23rd January 2025. This report stated that the Complainant was well, with no symptoms of illness and was fit to carry out all aspects of her role, with no necessary restrictions, special accommodations or follow-up meeting suggested.

Having regard to the foregoing, the Respondent strongly denied that any breach of the Employment Equality Act had occurred. They submitted that the concern with the Complainant related to her refusal to accept an amendment or provide flexibility in relation to her duties and the contract to which she was assigned.

They restated that the Complainant did not provide details of any medical issues that might affect her employment at the commencement of her employment when specifically asked. Furthermore, they stated that these issues were not directly disclosed to the Respondent at any point prior to the referral of the complaint.

In particular, the Respondent pointed out that following the grievance and the allegations raised by the Complainant, she was referred for an occupational health assessment, which again concluded that the Complainant did not require any further assistance or special requirements in her role.

In this regard, the Respondent submitted that the Complainant simply remained dissatisfied with the proposed amendment of her contract, which was the true source of her disquiet. Therefore, the Respondent submitted that the present complaints should fail.

CA-00068364-001 – Complaint under the Employment Equality Act

Regarding the present complaint, the Complainant has alleged that the Respondent failed to make a reasonable accommodation for her disability, and that they directly discriminated against her during a meeting arranged to discuss the same. By response, the Respondent submitted that the Complainant did not disclosure a medical condition at the outset of her employment and that she did not require any accommodations to continue in her role. They further denied any direct discrimination against the Complainant on these grounds. 

Regarding an employer’s duty to provide reasonable accommodation, Section 16(3)(b) of the Employment Equality Act provides that,

“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.”

Section 16(3)(b) 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.”

In the case of Nano Nagle School -v- Daly [2019] IESC 63, the Supreme Court discussed an employer’s duty to provide such reasonable accommodation. Here the Court held as follows,

“… s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself.”

In the matter of Cunningham v Irish Prison Service [2020] IEHC 282, Barr J held that,

“Justice requires that the person suffering from the disability be given the chance to make his/her case that they could perform the functions required of them if reasonable accommodation were made for them, which was not unduly burdensome to the employer and did not impair the operational capacity”

In the matter of Humphries v Westwood Fitness Club [2004] 15 E.L.R. 296, the Labour Court held that in assessing the requirements for a potential reasonable accommodation, an employer would, “normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity”.

The Court went on to state that,

“It is generally accepted that the nature and extent of the enquiries which an employer should make will depend on the circumstances of each case and the questions which the employer is considering”.

Regarding the present case, the Complainant has stated that during the relevant period for the purposes of the present complaint, she was in recovery and under ongoing supervision in respect to cancer treatment. In this regard, the Complainant opened various reports demonstrating that she underwent significant surgery and radio therapy in 2020.

By submission, the Respondent stated that the Complainant was requested to complete a medical questionnaire at the commencement of her employment.  This form enquired as to whether the Complainant had any form of disability or required any form of accommodation in order to complete the role for which he was hired. It is common case that the Complainant unequivocally stated that she did not have any such disability or require any such accommodation and on this basis the Complainant commenced her employment.

It is further agreed between that parties that the Complainant completed her duties to a high standard and performed well throughout her employment. It is also understood that the Complainant neither required nor requested any form of accommodation for the first year of her engagement.

It is apparent that relations between the parties deteriorated with the appointment of a new Director of Cleaning in July 2024. The evidence of this witness was that he was charged with re-arranging the activities of the Respondent so as to effect various efficiencies in the operation of their services. In this regard, he sought to assign the Complainant to alternative sites because she performed well and was a reliable employee. In this regard, it is not at all unusual that the appointment a new management might lead to an amendment of the activities of an employer, nor is it unusual that the affected employees resist such change.

In the present case, it is apparent that the Complainant strongly resisted such change. From the Complainant’s written grievance, it is apparent that were the Respondent to insist on reassigning the Complainant, she asserted that she would resign her employment and “take the team members I brought from other companies with me, as they are loyal to me”.

In a subsequent meeting, the Complainant then asserted that she could not be assigned to the other roles due to a health issue. In evidence, the Director of Cleaning stated that he was unaware of any pre-existing health issues on the part of the Complainant. He further submitted that the Complainant raised these matters in the context of asserting that she would commence a period of sick leave and thereafter commence litigation against the Respondent. In evidence, the Complainant disputed this version of events, stating that she informed the Respondent of her health concerns and stated that she was instructed by her medical practitioner to avoid stress on foot of the same.

As set out above, the Complainant expressly stated at the commencement of her employment that she did not require any accommodations in order to complete her role. It is also apparent that she did not require any accommodations in the role for a period of approximately one year prior to meeting with the Director of Cleaning. From the factual matrix presented by the parties, it is apparent that the matter of the Complainant’s health, and the requirement to avoid stress, arose in the context of her seeking to resist an amendment to her duties and were asserted following an earlier attempt to prevent the transfer of duties. Finally, it is noted that the Respondent opened an occupational health report demonstrating that the Complainant was fit for work and did not require any accommodations to complete the same. While the Complainant did open a later report from her own physician, and it is noted that this report recommends that she avoid stress, this report was not communicated to the Respondent at the relevant time.

In consideration of the accumulation of the foregoing points, I find that the Respondent is not in breach of their obligations under Section 16 of the Act, and this section of the complaint is deemed to be not well founded.

Regarding the second aspect of the complaint, the Complainant has alleged that the Respondent directly discriminated against her. By submission, the Complainant stated that this discrimination took the form of general disinterest in protecting her health.  She submitted that this position was best exemplified in the comment made by the Director of Cleaning to the effect that he “did not care about (her) health” during a one-to-one meeting. In response to this allegation, the Respondent stated that they were not on notice of the Complainant’s health issues. They submitted that once they were placed on notice of the same, they commissioned an occupational health report and sought to engage with the Complainant in relation to the issue.  Regarding the comment attributed to the Director of Cleaning, he submitted that he had no specific recollection of the same but accepted that he may have made such a comment. In this respect, he submitted that he was not placed on notice of the Complainant’s medical history at this juncture.

In this regard, Section6(1)(a) of the Act provides that,

“For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where:

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation…which—

(i) exists

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned”

Subsection (2) provides that ‘disability’ is included in the grounds on which discrimination is prohibited.

Regarding the burden of proof for such complaints, Section 85 allocates the probative burden between the parties. In particular, Section 85(A)(1) provides that,

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

In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that,

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

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

In the matter of Galway Mayo Institute of Technology -v- Vlad Teleanca EDA 1835, the Court stated that this “Mitchell Test” was comprised of the following three steps:

1.       “It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so he or she cannot succeed.

2.       If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3.    If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent”

In the matter of Melbury Developments Ltd v Valpeters EDA 09/17, the Labour Court commented that,

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.” 

In considering the Complainant’s case in this regard, it is noted that the Complainant did not put the Respondent on formal notice of her disability at the commencement of her employment, when specifically requested to do so. It is further apparent that the Complainant did not formally put the Respondent on notice of the same in the normal course of her duties. As discussed above, the issue of the Complainant’s health, and her assertion that that she was advised to avoid “stress” in the workplace, arose from a dispute regarding a potential amendment to the Complainant’s working arrangements. In consideration of the same, while I find that the Director of Cleaning may well have said the words attributed to him, he did not do so in the knowledge of the nature of the Complainant’s medical issues. In this regard, these matters were being discussed in the context of a dispute regarding a potential amendment to the Complainant’s terms and conditions. While the statement attributed to the Director of Cleaning is inappropriate, in the context of his lack of knowledge regarding the Complainant’s issues, and the earlier statements by the Complainant that she intended to resign and take members of staff with her, this can be attributed to a sense of frustration regarding the issues that had arisen, as opposed to an example of the Respondent’s unwillingness to meet and consult with the Complainant regarding her health related issues.

Having regard to the foregoing, I find that the Respondent did not discriminate against the Complainant, and the complaint is duly deemed to be not well-founded.

CA-00068364-002 – Complaint under the Payment of Wages Act

Regarding this complaint, the Complainant alleged that the Respondent proposed to reduce her wages in the coming months. In circumstances whereby this complaint does not relate to an alleged illegal deduction from the Complainant’s wages within the cognisable period for the purposes of the present Act, I find that the same is not well-founded.

CA-00068364-001 – Complaint under the Employment Equality

I find that the Complainant was not discriminated against by the Respondent.

CA-00068364-002 – Complaint under the Payment of Wages Act

I find that the complaint is not well-founded.

Reasonable Accommodation, Discrimination, Disability