Complainant

Respondent

Anonymised Parties

Store Colleague

Woodies DIY Limited

Representatives

Mr. Michael Francis Forde BL, instructed by  J.V. Geary Solicitors

Mr. Alan Ledwith BL, instructed by Arthur Cox

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00064702-001

10/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00064702-002

10/07/2024

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

CA-00064702-003

10/07/2024

The Complainant commenced employment with the Respondent on 6th March 2006. At all relevant times, the Complainant’s role was described as that of “store colleague”. The Complainant was a permanent of staff. The Complainant’s contract of employment was terminated by the Respondent on 28th February 2024, on the grounds of capability.

On 10th July 2024, the Complainant referred the present set of complaints to the Commission. Herein, she alleged that her dismissal arose as a form of penalisation for previously raising health and safety allegations against the Respondent. In addition to the same, the Complainant submitted that she had been discriminated against on the grounds of age, disability and gender by the Respondent. By response, the Respondent denied each of these allegations, stating that the Complainant had been dismissed on foot of a comprehensive internal procedure. They submitted that they fully engaged with the Complainant during the process and that the decision to dismiss her was based on external medical opinion.

A hearing in relation to this matter was convened for, and finalised on, 7th April 2025. This hearing occurred at the Castlebar Courthouse, Co Mayo. 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 member of the Respondent’s HR department gave evidence in defence. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side.

At the outset of the hearing, the Complainant, via her representative, confirmed that the complaint under the Unfair Dismissals Acts was to be withdrawn and that the matter of penalisation should proceed under the Safety, Health and Welfare at Work Act 2005.

As the decision below will involve a consideration of the Complainant’s medical history, I have utilised my discretion to anonymise her name in the published decision.

In evidence, the Complainant stated that she commenced work as a “store colleague” in March 2006. She stated that for the vast majority of her engagement with the Respondent she was happy in her role and got on well with staff and customers alike.

In February 2019, the Complainant was subject to a series of incidents involving a deputy manager within the store, which culminated in her issuing complaints of bullying to the Respondent on 19th February. The bullying in question involved repeated unwanted acts and comments from this individual in the presence of other staff and customers, which she believed undermined her confidence within the team, causing her acute anxiety and stress.

At this point, the Complainant expected the employer to apply the appropriate Code of Practice for employers and employees concerning the prevention and resolution of bullying at work, and that such a process would be completed to safeguard her welfare. Following the investigation of her complaints, the deputy manager in question was transferred out of the store into another unit in January 2020. At this juncture, the Respondent made assurances to the Complainant that this behaviour would never occur again, and following several weeks of counselling, the Complainant felt that she was supported by The Respondent and was happy to return to work.

In October 2020, approximately 10 months following the deputy manager's transfer, the Respondent elected to transfer him back to the Complainant's branch. This occurred without any notice or consultation with the Complainant. The Complainant felt stressed working alongside this person and elected to reduce her working days from four to three days. The Complainant stated that she was suffering stress as a consequence of her interactions with this person and requested a continuation of counselling.

In August 2022, the Complainant found that she was becoming unwell due to the stress of working with the deputy manager, and commenced a period of certified sick leave. Whilst on sick leave, on 8th February 2024, the Complainant issued a lengthy email to the CEO of The Respondent, cc’ing the manager of the branch in which she worked. In this correspondence, the Complainant clearly set out her grievances in relation to the conduct of the deputy manager in question, expressly stating that the Respondent had failed in its duty of care to her as an employee and had caused her to experience ongoing distress. During this email, the Complainant requested that this matter be resolved prior to her return to work. The Complainant received no contemporaneous response to this email.

In evidence, the Complainant stated that she did receive a call from the HR person within the Respondent organisation at the time. She stated that this call did not provide her with any comfort regarding her ongoing issues, and it was stated that the deputy manager would continue to work in the store alongside her. Thereafter, the Complainant remained on long term sick leave and attended several occupational assessments organised by The Respondent. Throughout this process, the Respondent expressly stated that they could not take any further action against the deputy manager and objected to the Complainant's suggestion that they could remove him from his employment as such action may trigger a legal action.

At this juncture, the Complainant engaged her solicitor to correspond with the Respondent, raising a concern that they were in breach of the Safety Health and Welfare at Work Act 2005, querying whether the Respondent had conducted a risk assessment in relation to allegations of bullying previously raised and whether they were applying the relevant Code of Practice on the prevention and resolution of bullying at work.

During the subsequent consultation meetings, an impasse occurred when no options were actively considered that might involve the Complainant working from home or the imposition of some other working arrangement that might permit the Complainant to work when the deputy manager was not present.

On 26th February 2024, the Complainant was summonsed to a meeting with HR to discuss a recently issued occupational health report. In this regard, the Complainant submitted that this report, and the other report issued some time previous, stated that she was unfit to work on a temporary basis only. When asked to offer solutions to the issue that had arisen, the Complainant suggested that she could undertake some work from home. This request for reasonable accommodation was dismissed out of hand. Instead of considering the same, the Respondent stated that they could only offer a return to work on the days on which the deputy manager was not present. Such an outcome would necessitate a reduction in salary and working days and was not agreeable to the Complainant. 

Within the same written offer, a threat was made to the effect that if the Complainant did not accept this reduction in working hours, her employment would be terminated on the grounds of capability. Thereafter, the Complainant was dismissed on this basis by letter dated 24th February 2024. In so doing, The Complainant submitted that The Respondent wilfully breached section 27 of the Health Safety and Welfare at Work Act 2005, enacted to prevent employees from penalisation for previously raising issues in accordance with the legislation. In this regard, the Respondent submitted that the Respondent steadfastly failed to take action on foot of the Complainant’s allegations of bullying. Rather than complying with the relevant code in this respect, the Respondent manufactured a situation whereby the Complainant was obliged to remain on sick leave for an extended period of time, and subsequently dismissed her as a consequence of their inability to resolve the issue.

Regarding the allegations of discrimination, the Complainant submitted that on 8th September 2023, the Respondent issued correspondence to her, noting that she had passed the standard age of retirement. In this respect, they stated that should she wish to remain beyond her retirement age, she was required to write within six months prior to the lapse of the contractual age. In this respect it was submitted that as the Respondent established that the Complainant had passed the usual retirement age, no particular engagement occurred in relation to her complaint, nor was any material resolution considered. The Complainant further submitted that the Respondent failed to make a reasonable accommodation for her disability prior to her dismissal in contravention of the equality acts.

From the outset, the Respondent denied the allegations raised by the Complainant on a substantive basis. In this regard, they accepted that the Complainant was a long-standing member of staff and that the employment was without significant event until 2019.

On 1st February 2019, the Complainant alleged that she was working in reception when an incident occurred at the till. She stated that the deputy manager on duty at the time had said, "get out of the way", to her in an abrupt tone of voice. She stated that this interaction had left her feeling extremely upset and caused her to take some time off thereafter.

Following the receipt of the Complainant’s written complaint in this regard, the issue was investigated along with other matters regarding the alleged behaviour of this individual, pursuant to the Respondent's disciplinary procedures. An outcome was issued to the manager in question on 19th March 2019, stating that he was to receive a written warning in accordance with the Respondent's internal disciplinary procedures.

By submission, the Respondent disputed that that the deputy manager was moved from the Respondent's store as direct consequence of the complaint raised by the Complainant. In this respect, the Respondent submitted that the manager was moved to facilitate temporary business needs in existence at the time. The manager returned to the store in question in October 2020, as these business needs ceased to exist. While it was accepted that the Complainant was not consulted regarding the return of the deputy manager, the Respondent submitted that she had no entitlement to such consultation regarding a business decision.  

During the hearing, copies of the Complainant's annual reviews for 2021 and 2022 were opened as part of the proceedings. These reviews both stated that the Complainant was happy in her role and was performing well.  In this regard it was noted that no issue was raised during these meetings regarding the now returned deputy manager.

On 16th August 2022, the Complainant commenced a period of certified sick leave. The medical certificates subsequently issued by the Complainant variously stated that she was suffering from stress due to work, and an acute medical event/condition. In October 2022, a member of the Respondent's HR department contacted the Complainant to discuss her ongoing absence and to explore how a potential return to work could be facilitated. During this conversation, the Complainant alluded to ongoing inter-personal issues regarding the deputy manager. At this juncture, and numerous times thereafter, the HR representative referred the Complainant to the relevant internal procedures and invited her to make a complaint. By response, the Complainant stated that she would not return unless the deputy manager was removed from the store.

Thereafter, the Respondent arranged an occupational health appointment for 14th October 2023, with a report issuing shortly thereafter. This report stated that the Complainant was temporarily unfit for work and recommended that, in an effort to assist the Complainant in her return to work, she should meet with HR to explore solutions regarding the issues with the deputy manager.

On 29th September 2023, another member of The Respondent's HR department contacted the Complainant via email, inviting her to a capability meeting on 2 October 2023, to discuss a potential return to work. On 2nd October 2023, the Complainant contacted the HR member stating that she was ill and could not attend the meeting. The Complainant requested that the meeting be rearranged in a few weeks when she might be feeling better, a request the Respondent acceded to.

Throughout late 2023, the Respondent made numerous efforts to invite the Complainant to a meeting to discuss the findings of the occupational health report and explore methods by which the Complainant might return to work. While the Complainant appeared amenable to such a meeting, she stated that she was not well enough to engage in that process at that time. 

On 9th January 2024, the Respondent contacted the Complainant by email, inviting her to attend a capability meeting scheduled for 11th January 2024. This meeting was duly attended by the Complainant, the Complainant's husband, the Respondent’s HR representative and a note taker. During this meeting, a summary of the occupational health report was set out and inquiries were made as to whether the Complainant could provide any indication of her potential return to work. The Complainant stated that her GP was of the view that it would be unsuitable for her to return to work so long as the deputy manager that had bullied her was still there.

During this first capability meeting, the Complainant referred to interpersonal issues with the deputy manager and stated that she received a lack of support and protection from the Respondent. When the HR representative enquired as to whether any reasonable accommodations could be made by the Respondent to support the Complainant's return to work, the Complainant asked for the deputy manager in question to be removed from the Respondent's store. At this juncture, the HR representative stated that this could not be facilitated but again requested that the Complainant raise a formal grievance in relation to the same to as to allow a full investigation to take place. 

In discussing potential accommodations that might be arranged, the Complainant inquired as to whether she could work from home. By response, the HR representative stated that, given the nature of her role, working from home would not be possible. The Respondent also suggested that the Complainant could apply for various roles within the Respondent's support offices, which may facilitate remote working. The HR representative enquired as whether the Complainant would be amenable to an arrangement whereby her lunch and work areas were in opposition to those of the deputy manager, so as to reduce contact between the parties. By response, the Complainant stated that she did not have faith in the Respondent ability to arrange the same. At the end of the meeting, the HR manager once again advised the Complainant that she could raise her concerns about the person in question, utilising the relevant internal procedure. The HR manager informed the Complainant that a such a grievance must be submitted in writing to the HR help desk or directly to herself.

Following this meeting, a second capability meeting was convened for 8th February 2024. During same, the HR representative enquired as to whether the Complainant had considered any other reasonable accommodations that might assist in her return to employment. The Complainant replied that she had not, again referring to the fact that the deputy manager in question was still a member of the staff. The Complainant was again invited to make use of the Respondent's grievance procedures, and references were made to the accommodations suggested in the previous capability meeting. Again, during this meeting the Complainant insisted that she could not return to work in the same store as the deputy manager.

At this point, the Complainant informed the HR representative that she had sent an email to the CEO of the organisation on 28th August 2022 regarding the conduct of the deputy manager. As the HR representative was unaware of the content or existence of this communication, she requested that the same be issued to her. On that date, the Complainant’s husband forwarded an email issued to the CEO of the organisation issued some 18 months previous. On receipt of the same, the HR representative checked the internal logs to determine what actions were taken on foot of the same. In this respect, the HR representative found a note from her predecessor stating that she had discussed the matter with the Complainant at the relevant time, and had asked that she refer a formal grievance in line with the Respondent’s internal policies. The following day, 9th February 2024, the HR representative responded to the communication setting out her understanding of the sequence of events.

In the course of this communication, the HR representative also requested that the Complainant contact her no later than 16th February 2024, setting out her view regarding any potential accommodations that could be agreed. The HR representative further advised that in the event that no accommodations could be agreed, a final capability meeting would be scheduled to bring the matter to a close. In due course this meeting was scheduled for 26th February 2024.

At the outset of the meeting, the HR representative once again clarified the options provided to the Complainant to facilitate her return to work. By response, the Complainant confirmed that she would not accept any of the proposed solutions and re-iterated that she would only return to work if the deputy manager was removed. The HR manager confirmed her understanding that, apart from the termination of the deputy manager's employment, the Complainant would not agree to any other accommodation to facilitate her return to work. In consideration of the same, the HR representative informed the Complainant that in these circumstances, and given that no accommodations could be agreed to facilitate the return to work, the Complainant’s employment would be terminated on the grounds of capability.

On 28th February 2024, the outcome of the final capability meeting was issued to the Complainant. This correspondence stated that she was to be dismissed on the grounds of capability, following the commission and review of two medical legal reports and the three meetings between the parties. The Complainant was notified that she had a seven-day period in which she could lodge an appeal of the dismissal. No such appeal was received from the Complainant.

By submission, the Respondent submitted that the complaints under the Safety Health and Welfare at Work Act and the complaints on the Employment Equality act should fail. The Respondent stated that The Complainant did not make any disclosure that might be considered a protected act under the Safety Health and Welfare at Work Act. While they did accept that she raised a grievance, they stated that this was a grievance only and did not relate to any matters relating to the Complainant's health and safety.

In addition, The Respondent submitted that the dismissal of the Complainant occurred solely due to her ongoing and persistent incapability to perform the role for which she was hired. In this respect, the Respondent submitted that the Complainant was on long term sick leave, with no realistic opportunity for her to return. In this regard, the Respondent submitted that the position of the Complainant throughout the internal process was that she would only return to work should the deputy manager with whom she had the inter-personal issues with be dismissed. They stated that they had a duty of care to this person and simply could not dismiss him on the grounds of the request of another member of staff.

Regarding the employment equality complaints, the Respondent submitted that they made all reasonable efforts to accommodate the Complainant’s illness. In this respect, they submitted that they had engaged with the Complainant on a number of occasions in respect to her proposed return to work. They submitted that the two accommodations sought by the Complainant; the dismissal of the deputy manager and working from home, were unworkable and, regarding the former proposal, a breach of the employment rights of that individual. They stated that they explored other accommodations that might be made for the Complainant, including different shifts, different working patterns, and potential moves within the business, none of which the Complainant agreed to or engaged with in any material fashion. The Respondent further stated that they allowed for an appeal of the dismissal, a process the Complainant elected not to engage with. In this regard, they submitted that if the Complainant had genuine concerns regarding a failure on the part of the Respondent to provide reasonable accommodation, that would represent the appropriate venue for the ventilation of such concerns.

Regarding the allegation of discrimination on age related grounds, the Respondent submitted that once the Complainant turned 65 years of age, the Respondent’s processes regarding retirement automatically commenced. They stated that this had absolutely nothing to do with the dismissal of the Complainant and was not in consideration by the decision maker at the relevant time.

CA-00064702-001 Complaint under the Safety, Health and Welfare at Work Act, 2005

Regarding the present complaint, the Complainant alleged that the Respondent failed to investigate a complaint of bullying raised by her in the course of her employment. In this regard, she submitted that following the communication of her concerns in this regard, she was ignored by the Respondent, that her return to work was not facilitated and that she was ultimately dismissed as a direct consequence of the same. In denying this allegation, the Respondent firstly submitted that the Complainant did not issue any communication that might be considered a protected act under the legislation. Thereafter, while they accepted that the Complainant suffered a detriment, in that she was dismissed, they denied that this arose as a form of penalisation for the purported protected Act.

In this regard, Section 27(1) of the Act defines “penalisation” as,

“…any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.”

Section 27(2) A expressly lists “suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal”, as forms of detriment that might give rise to a find of penalisation.

Section 27(3) of the Act the provides that,

“An employer shall not penalise or threaten penalisation against an employee for—

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work”.

In the matter of Toni and Guy Blackrock v Paul O’Neill [2010] 21 E.L.R., the Labour Court set out the following test to determine penalisation under the terms of the Act.

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus, the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of, the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.”

In consideration of the foregoing, the Complainant must satisfy the following tripartite test in order to be successful in her complaint. She must firstly demonstrate that she made a complaint to the Respondent in accordance with Section 27(3). Thereafter, she must demonstrate that she suffered a detriment as defined by Section 27(2). Finally, the Complainant must demonstrate a causal link between the two, in order for the detriment to be deemed penalisation for the purposes of the Act.

Regarding the initial point, the Respondent disputed that the Complainant issued any communication that might satisfy the requirements of Section 27(3). In this regard, it is common case that the Complainant issued two written complaints to management during the course of her engagement. The second of these complaints, issued on 28th August 2022, alleges that the Complainant had been bullied by her manager for a period of time. This communication expressly alleges that the Respondent failed in its duty of care to her in the prevention of this bullying. Towards the end of the correspondence the Complainant stated that she engaged in this process to prevent anyone else from “getting hurt”. In this regard it is apparent that the Complainant issued correspondence to management, alleging that the Respondent failed in its duty of care to prevent her from being injured as a consequence of ongoing bullying. Having regard to the foregoing, it is apparent that the correspondence relates to matters regarding safety, health and welfare at work, and as consequence of the same, I find that the Complainant satisfies the initial part of the test.

Regarding the second part of the test, it is common case that the Complainant remained on long-term sick leave and was dismissed on the grounds of alleged incapacity thereafter. In such circumstances it is uncontroversial that the Complainant suffered a detriment as described by Section 27(2).

Regarding the final part of the test, the Respondent strenuously denied that the Complainant was dismissed in retaliation for raised the issues described above. In this respect, they submitted that the Complainant was dismissed following a comprehensive internal process to determine her fitness to engage in the role. In support of this position, the Respondent submitted that they commissioned two separate medico-legal reports and convened three consultation meetings with the Complainant to discuss her potential return to work. The first such report, issued on 14th October 2023, identified the issues regarding the deputy manager as the source of the Complainant’s distress, and recommended a meeting between the parties to resolve the issue. The second report, dated 8th January 2024, again stated that the primary method by which the Complainant would return to work is through engagement with the Respondent in an effort to resolve the inter-personal issues in the workplace.

Thereafter, the Respondent engaged in three separate capability meetings. While some accommodations were suggested by the parties, and these will be discussed in the decision below, the primary outcome of this process was that the Complainant would not return to employment unless the Respondent could guarantee that she would not interact with the deputy manager in question. During the internal process and at the hearing, the position of the Respondent was that they could not simply remove this individual on the request of the Complainant. I further note that while the Complainant did issue correspondence to the Respondent alleging bullying behaviour on the part of this individual, this correspondence did not particularise the alleged wrong-doing on the part of the respondent to the complaint. While the Respondent should be criticised for their failure to issue a contemporaneous response to the same, I note that throughout the internal capability process, the Complainant was invited to utilise the Respondent’s internal procedures and issue a formal, particularised complaint in this regard.

Having considered the position adopted by the Respondent in relation to the foregoing, I find that the same is reasonable. While the Complainant clearing held strong views regarding the conduct of the colleague in question, the Respondent must be mindful of the rights of that individual assessing the position of the Complainant. In consideration of the foregoing point, I find that the dismissal of the Complainant did not arise as a consequence of her previously raising health and safety issues, but occurred following a consideration of her ongoing incapacity to complete the role for which she was hired.

In summary, while I find that the Complainant did raise health and safety concerns as defined by the Act, and did suffer a detriment thereafter, she has not demonstrated a causal link between the two. As a consequence of the foregoing, I find that her complaint is not well-founded.

CA-00064702-003 Complaint under the Employment Equality Acts

Regarding this complaint, the Complainant’s allegations are two-fold. Firstly, she alleged that the Respondent failed to make a reasonable accommodation to allow her to return to work following her illness. Secondly, the submitted that the capability process described above was tainted by age-related discrimination.

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 —

iii.                 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 stated that she proposed accommodations that the Respondent simply rejected out of hand. She stated that she sought to explore the potential of working from home to allow her to return to work, accommodating her illness. She stated that Respondent not only rejected this suggestion out of hand but also later described same as “disingenuous” in correspondence.

In this regard, it is apparent that the Complainant was engaged as a store operative within a large retail environment. As such, I agree with the Respondent's assessment that it was impractical for the Complainant to perform this role in any material fashion from home. I further note that Respondent suggested that other roles within their business might be amenable to home working and suggested that Complainant apply for these. While this was no guarantee that the Complainant would be appointed to these roles, it did demonstrate the Respondent's understanding and a willingness to engage in other forms of work that might assist in her return to employment. In this regard, Complainant's suggestion that she work from home as a retail operative would, in fact, be creating an entirely new role for Complainant, as this role did not exist elsewhere within the Respondent's business. In these circumstances, I find that this suggested amendment goes beyond the Respondent's requirement to reasonably accommodate the Complainant's disability as required by the legislation.

An accommodation suggested by Respondent was that the Complainant could work on alternate shifts to the manager with whom she experienced the interpersonal issues. During the internal process the Complainant rejected this suggestion as, in her view, it would involve a reduction in hours and a diminution in her employment terms. While this may be the case, the Respondent simply could not reduce the hours of the deputy manager in question to accommodate the needs of the Complainant. Once again, in seeking to accommodate the Complainant, the Respondent had to be mindful the deputy managers rights, and to reduce a person's hours simply at the request of one of their colleagues in this manner suggested would represent a breach of the same.

While the Complainant was not inclined to accept the accommodation suggested by the Respondent, it did demonstrate that the Respondent was willing to seek to accommodate the Complainant in a return to work and was engaging with her on a constructive basis in order to do so. Ultimately, as matters transpired, the Complainant stated that she could not return to work if the deputy manager continued to work in the store. While this is unfortunate, it put Respondent in an extremely difficult position in that they could not facilitate Complainant's return to work without breaching the rights of one of their other employees.

Having regard to the foregoing, I find that the Respondent did seek to make reasonable accommodations to permit the Complainant to return to work. In these circumstances, I find that the Complainant was not discriminated against by the Respondent in this regard.

The second claim issued by the Complainant was that she was discriminated against on the grounds of age. In this respect, she submitted that prior to the commencement of the dismissal procedures, the Respondent issued correspondence stating that the Complainant had reached the retirement age and made enquiries as to her intentions thereafter. In this regard, the Complainant submitted that the process undertaken by the Respondent was tainted by age related discrimination. By response, the Respondent submitted that the correspondence in question was generated when the Complainant attained a certain age, and that these matters were entirely unrelated to the procedure that followed thereafter.

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 Labour 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 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.”

Having regard to the foregoing, and particularly the find in Melbury, cited above, I find that the Complainant allegations regarding age related discrimination constitute “mere speculation” as cautioned against in the passage cited above. In this respect, the Complainant submission was that she received correspondence enquiring as to her potential retirement and thereafter suffered discrimination in the manner by which she was treated. This submission constitutes speculation without support of any tangible evidence that might support the same.

Having regard to the forgoing, I find that the Complainant as not discriminated against by the Respondent.

CA-00064702-002 Complaint under the Unfair Dismissals Acts

In circumstances whereby this complaint was no pursued, I find that the Complainant was not unfairly dismissed by the Respondent.

CA-00064702-001 Complaint under the Safety, Health and Welfare at Work Act, 2005

I find that the complaint is not well-founded.

CA-00064702-003 Complaint under the Employment Equality Acts

I find that the Complainant was not discriminated against.

CA-00064702-002 Complaint under the Unfair Dismissals Acts

I find that the Complainant was not unfairly dismissed by the Respondent.

Penalisation, Causation, Reasonable Accommodation, Age