ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00056872

Parties:

Complaints:

Date of Adjudication Hearing:  29/07/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015  and/or Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.  The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

Section 41(13) of the 2015 Act provides:

“Proceedings under this section shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of a party to the proceedings, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.”

I have decided due to medically sensitive information, to anonymise the decision.

Background:

The Complainant claims constructive dismissal and discrimination on grounds of disability.

Summary of Complainant’s Case:

The Complainant was employed as a Deli Assistant from 25 January 2017 to 30 September 2024.                 She had to leave her employment after 7 years because the employer would not agree to her being given four hour shifts which had already been her pattern of work.  She could do some 8 hour shifts in the past, but she was no longer able to do them.

She stated that she was diagnosed with MS and was unable to do 8 hour shifts.  The Deli was very busy in Summertime and she found it very stressful to do more than 4 hours.  Having MS meant she could not do more than 2 days due to the exhaustion she experienced.  She had to work some 8 hour shifts before she went on holidays and when she came back she knew she would not be able to do 8 hour shifts.  She had been given 4 hour shifts before, and when she asked the Respondent to only roster for 4 hour shifts he said “No”.    He pointed out others who were “worse off” case than she was and he asked her to give him a resignation letter.  She was very upset and spoke to the owner’s wife who said he won’t change his mind.  She left the employment as she could not do 8 hour shifts and the Respondent would not agree to roster her for shorter shifts.

Summary of Respondent’s Case:

The Respondent operates a retail business located in a seaside resort, subject to seasonal fluctuations in trade.

The Complainant is a Deli Assistant whose employment started on March 20, 2019.  She was given a permanent contract for 35-40 hours per week.

The following is a background and history of the employment:

09th June - 07th July 2021: Sick Leave as a result of a MS diagnosis. Although the company does not operate a sick pay scheme, the Complainant was paid in full for six weeks in order to support her at this time.

08th July 2021: The Complainant returned to work and requested to reduce her working hours. Request was accommodated and a contract amendment issued on the 01st September 2021 reflecting an 8 – 18 hours working week. All other terms and conditions remained as per the original contract of employment.

23rd Nov. 2021 – 24th Oct. ’22 Sick leave as a result of a ruptured Achilles while playing GAA. On return-to-work the Complainant requested to work approximately 12 hours per week, as she informed me that working only 12 hours ensured she could maximise her disability allowance. This request was accommodated. To accommodate the Complainant’s request the working rosters were altered. In general, the company operated on a two-person shift, however, the company accommodated her as a ‘third person’ on the shift, an arrangement which was not normal practice, however, the company was willing to support the Complainant in any way possible. On occasion and at her request the company facilitated an 8-hour week. Her working pattern altered between 4-hour shifts and 8-hour shifts when required to cover annual leave / sick leave etc.

24th July - 31st October ‘23: Sick Leave as a result of an operation.

01stNovember 2023:     Returned to work and continued to work 8 – 12 hours per week. The company verbally made her aware that due to the seasonal nature of the business and as the low trade winter months were approaching it would not be possible to always accommodate 4-hour shifts.

2nd Sept. – 19th Sept. ’24: 2 x weeks Annual Leave

20th Sept. 2024 (10am): Returned from annual leave.  She took a total of 18 days leave (4-hour days). This resulted in an overpayment of 10 hours on her accumulative annual leave; however, the company did not seek to recuperate the overpayment.

20th Sept. 2024 (10.20am): The Complainant requested a meeting in the company office. At this meeting the Complainant requested to further reduce her hours to 8 hours per week and to only work 2 x 4-hour shifts. I explained to The Complainant that the company could not guarantee her to only work 4-hour shifts as the winter months were approaching but the company would continue as it had done in the past and facilitate 4-hour shifts whenever possible. At this point the Complainant told me that she understood and agreed with me. I informed her that the company would require some level of flexibility from The Complainant and on occasion this may require her to work an 8-hour shift to cover sick leave, annual leave etc. This working arrangement was no different from what the Complainant had been working since 2021. I asked the Complainant if she could give me that flexibility of working the occasional 8-hour shift, The Complainant said No. This surprised me as there were occasions when The Complainant requested to work an 8-hour shift for personal reasons. There are no other staff members working 4-hour shifts throughout the winter months unless in an exceptional busy period and on those occasions the 4-hour shift would be utilised as a back-up. The company could not have given a 100% commitment to the Complainant to only work 4-hour shifts but were more than willing to support 4-hour shifts when possible if the Complainant could provide flexibility when required (flexibility is extremely important in the retail business). After I had explained everything to the Complainant, she responded by saying “that is fine, I will have to resign”. I reassured The Complainant and told her that her job was there for her, all was required (as previously) was flexibility and this would require her to work an eight-hour shift occasionally as she had done in previous winter months. The week The Complainant resigned she was rostered to work 3 x 4-hour shifts and the roster for the following week was that she would work 4-hour shifts. The Complainant then requested that I take her off the roster for the coming week and informed me that she would terminate her employment on Sunday 22nd September. I reluctantly accepted the Complainant’s resignation. I asked The Complainant for her resignation in writing, and she said she would ask her daughter to write a letter for her. A resignation letter was never submitted. There was no agreement in relation to notice period as this was never discussed. The company has always been flexible and accommodated all staff when and where possible. During The Complainant’s employment with the company all requests to change shift arrangements were accommodated where possible. The Complainant did communicate that she did not want to work busy periods / bank holiday weekends and again she was always facilitated where possible. Over a period of time, the Complainant’s work output had greatly reduced. This did impact other staff members as they had to cover for her. At no stage was the Complainant reprimanded, in fact the Complainant got immense support and encouragement from both staff and management. Management always had a very good working relationship with the Complainant during her employment and for a brief period of time after her resignation.  Personally there had been no further contact with the Complainant by the Respondent.  The Respondent’s wife was speaking to her on the weekend that the Complainant terminated her employment and for subsequent weeks later. At no stage did the Complainant indicate that she was aggrieved in anyway. On the day that The Complainant left the company, she appeared relieved to be finished and said that in reality she really was not able for work. She hugged the Respondent’s wife as she departed.

The Respondent stated that he never refused the Complainant a 4 hour shift.  He simply told her he could not guarantee it and he required some flexibility from her to cover an occasional 8 hour shift if someone was on leave.  He pointed to the fact that he had not altered her shifts and she was rostered for 4 hour shifts in the weeks after she left.  She said she would have to leave if he could not guarantee her 4 hour shifts. 

Findings and Conclusions:

CA-00069174-001           Unfair Dismissals Act 1977

The Complainant in this case is claiming that she was constructively dismissed.

The definition of constructive dismissal as provided for in the Unfair Dismissals Act 1977 (as amended) is:

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

There is a high bar in relation to the onus of proof which lies with the Complainant in constructive dismissals claims.                                     

It has been established that there is a requirement to consider whether the employer has acted in a manner that indicates the employment contract is no longer being adhered to.   The employee’s conduct must also be considered. Did the employee afford the employer the chance to consider her grievance before resigning?

In Western Excavating ECC Limited –v- Sharp, the legal test to be applied is called the “contract test”.  In that case, the Court found:

“if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”.

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that said remedies are unfair.

The Complainant in this case is claiming that she was constructively dismissed, that is that she had to leave her employment due to the Respondent’s refusal to facilitate her with a short working week due to her medical condition.  Both parties had a discussion on the Complainant’s return to work following annual leave in September 2024.  The Complainant wanted a guarantee of 4 hour shifts.  The Respondent said he was not refusing her 4 hour shifts but could not guarantee them.  He wanted the Complainant to show some degree of flexibility.

The “contract” test

The Complainant was initially on a contract which specified “weekly hours: 35-40 hours”.

On 4/1/2023, both parties signed a contract which specified “weekly hours: 8 -18 hours per week”.

The Complainant was seeking a guarantee that she would only be rostered for 4 hour shifts as that was the limit of what she could withstand given her medical condition.  It is understandable that she felt under pressure and wanted a guarantee.  However the Respondent employer was not willing to give her that guarantee.  

I find the Complainant’s contract in existence at the time of her leaving the employment, specified 8-18 hours per week.  The Respondent, in advising the Complainant that he was not in a position to guarantee her 4 hour shifts was not breaching the terms of the contract. 

The “reasonableness test”

I note the Complainant terminated her employment when she was not guaranteed 4 hour shifts.  The Respondent did not breach the employment contract.  I accept that he stated that he could not guarantee the hours requested but he did not refuse the usual shifts.  This is evidenced by the rosters he had scheduling her for 4 hour shifts in the week following the termination of her employment.  While the employment is a small retail outfit, it would have been incumbent on the Complainant to at least put her grievance in writing to the Respondent to enable him to resolve her grievance.  In this case, no such opportunity was given to him.

Taking into account the definition of constructive dismissal and the circumstances surrounding this case, I find that the Complainant was not unfairly dismissed by way of constructive dismissal.  The complaint is not well founded.

CA-00069174-002           Employment Equality Act 1997

The Complainant submitted a complaint that she was discriminated against by reason of her disability.  She submitted the same narrative in relation to her complaint of constructive dismissal.  

The applicable law

Section 6 (1) of the Act states:

“(1) 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 on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,     

(iii) may exist in the future, or

(iv) is imputed to the person concerned..

Section 6 (2) (g) states:

(2)  As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act are –

(g)   that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”).

The Complainant in this case did not submit that she was treated less favourably than another person who is not a person with a disability or a person with a different disability.  She submitted that as the Respondent would not guarantee her 4 hour shifts she had no option but to leave her job and that this was directly related to her disability.

In this case, the Complainant had a contract of employment which stated her weekly hours as 8-18 hours.  She had been rostered for 2 four-hour shifts and was not in a position to work 8 hour shifts due to the effects on her of MS.   She went to her employer on 22 September 2024 seeking a guarantee that she would not be rostered more than 4 hours and he said he could not give her that guarantee.  The question is did he take into consideration the provisions of the Act in relation to providing reasonable accommodation for a person with a disability?

Section 16 (3) of the Act provides:

(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.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of –

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.

(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, ...”

Section 16(3) of the Acts sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. Therefore, for reasonable accommodation to arise, it is necessary for an employee not only to have a disability within the meaning of the Acts but also that appropriate measures are necessary in order for that employee to be fully competent and capable of undertaking their duties.

The Supreme Court in the case of Nano Nagle School -v- Daly [2019] IESC 63 has provided clarification regarding the nature of the obligation on employers to consult with employees when considering the provision of reasonable accommodation within the meaning of Section 16 of the Acts.  In essence, the Supreme Court in this judgement has held that while there is no statutory obligation to consult with the employee it would be wise for an employer to engage in “meaningful participation” in discharging its obligations under Section 16 of the Act.

In this case, I find that the Complainant, suffering a disability, requested from the Respondent special measures or reasonable accommodation to allow her to continue to work on restricted hours.  The Respondent refused to provide her with any guarantees.  I note he said he did not refuse to accommodate her but wished to retain some flexibility in the working hours.   I note his evidence was that there were “no other staff members working 4-hour shifts throughout the winter months unless in an exceptional busy period and on those occasions the 4-hour shift would be utilised as a back-up. The company could not have given a 100% commitment to the Complainant to only work 4-hour shifts but were more than willing to support 4-hour shifts when possible if the Complainant could provide flexibility when required”.

In Humphries v. Westwood [2004] 15 ELR 296, Dunne J., then a judge of the Circuit Court, held that, in order to form a bona fide belief that a claimant was not fully capable of performing the duties for which she was employed, a respondent employer would normally be required to make adequate enquiries to establish fully the factual position in relation to the claimant's capacity. The nature of the enquiries would depend on the circumstances, but would, at minimum, involve looking at medical evidence to determine the level of impairment arising from the disability.  In this instant case, no medical evidence was requested by the Respondent to examine the request to work only 4-hour shifts.

I find that the Respondent in this case failed to discharge his obligations to fully examine the Complainant’s request for reasonable accommodation in the form of guaranteed short working week to facilitate her to continue her employment.  I note his point about 4-hour shifts being used as a ‘back up’ and presumably there was an economic argument in relation to having to provide reasonable accommodation to the Complainant.  However, there was no financial information provided to demonstrate a clear financial burden on the Respondent.

In all of the circumstances, I find the failure of the Respondent to provide her with reasonable accommodation to work short shifts to be discriminatory on the ground of disability and I order the Respondent to pay to the Complainant the sum of €4,000 compensation for the effects of the act of discrimination. 

CA-00069174-003           Protection of Employees (Fixed term work) Act 2003

The complaint under this Act was withdrawn at hearing.

CA-00069174-004           Work/Life Balance Act 2023

The complaint under this Act was withdrawn at hearing.

Decision:

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

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

 CA-00069174-001          Unfair Dismissals Act 1977

Based on the findings and reasons above, I have decided that the complaint is not well founded.

CA-00069174-002           Employment Equality Act 1997

Based on the findings and reasons above, I have decided that the failure of the Respondent to provide the Complainant with reasonable accommodation to work short shifts to be discriminatory on the ground of disability and I order the Respondent to pay to the Complainant the sum of €4,000 compensation for the effects of the act of discrimination. 

CA-00069174-003           Protection of Employees (Fixed term work) Act 2003

The complaint under this Act was withdrawn at hearing.

CA-00069174-004           Work/Life Balance Act 2023

The complaint under this Act was withdrawn at hearing.

Dated: September 3rd 2025.

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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