ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00043779

Parties:

	Complainant	Respondent
Parties	Paul Hill	Department Of Social Protection

Representatives

Mr Peter Leonard BL instructed by Ms Clare McQuillan, Solicitor, Irish Human Rights and Equality Commission

Mr Stephen O’Sullivan BL instructed by Ms Eileen Burke, Solicitor, The Chief State Solicitor’s Office.

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00054772-001	30/01/2023

Date of Adjudication Hearing: 16/01/2025

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant is a civil servant and commenced employment in 2012. The Respondent is a major government department.

This complaint was received by the Workplace Relations Commission on 30th January 2023.

Summary of Complainant’s Case:

Factual Background

1. The Complainant suffers from a visual impairment which developed when he was sixteen. Such impairment affects the central vision which is required to drive, read and recognise faces. In addition, open plan layouts can be uncomfortable for him. This impairment is a disability within the meaning of the Employment Equality Act 1998.

2. The Complainant’s visual impairment can cause significant glare and light sensitivity which can cause difficulty seeing work as well as eye strain, headaches, tiredness, and fatigue. In this context tiredness refers to a short-term lack of energy and fatigue refers to mental and physical exhaustion. As such, the Complainant’s work environment, equipment and technology used to complete work tasks can have a huge impact upon his ability to complete his work in a timely fashion and can affect the manner in which he completes same.

3. Due to his disability the Complainant uses assistive technology such as inter alia screen reader, Screen Magnification System (ZoomText) and touchscreen capability to assist him to perform his job functions, attend meetings and training events similar to that of a non-disabled employee.

4. Prior to commencement of employment with the Respondent the Complainant worked in An Foras Áiseanna Saothair (FÁS)and instructs that he never experienced any issues with regards to reasonable accommodation.

5. The Complainant commenced employment with the Respondent on or around January 2012. He was initially in the role of Assistant Principal (AP) within the Contracted Employment Services Division before being transferred in 2018 to the Illness, Disability & Carers Policy Division. He was then transferred again in January 2023 to his current role within the One Parent & Child Income Policy Division.

6. Whilst employed in the Illness, Disability & Carers Policy Division he was over Disability, Employment Policy and Income Supports, and the Complainant was the longest serving AP in the division and was responsible for inter alia, the Disability Allowance, Blind Pension, Partial Capacity Benefit, Reasonable Accommodation Fund, as well as reporting against national and international disability related obligations and conventions and representing the department on disability policy matters on various national groups, working groups and/or committees.

7. It is submitted that the Complainant has been discriminated against on the protected ground of disability and has not been provided with reasonable accommodation in respect of this disability, and it is submitted that he has been victimised due to making a complaint in respect of the failure to reasonably accommodate him.

8. The Complainant submitted a complaint to the Workplace Relations Commission (‘WRC’) on 30 January 2023 claiming inter alia that his employer is discriminating against him on the grounds of disability. The complaint form indicates that this discrimination relates to the failure to provide reasonable accommodation, his conditions of employment and victimisation. The client’s union, AHCPS, assisted him with this complaint.

The NCBI Report

9. The National Council for the Blind Ireland (NCBI) conducted a Workplace Assessment Report on 5th April 2023. It was on on-site assessment of the Complainant’s workplace needs in relation to his disability. The assessment was conducted by an occupational therapist. The report notes, “Mr Hill has a vision impairment as a result of this, his visual acuity (distance vision) and his central vision are affected. In addition, he has significant glare and light sensitivity indoors and outdoors”

10. The report further notes at page 8:

“Mr Hill is required to travel in Ireland and overseas, so he works predominantly on his laptop. He uses a 14-inch touch screen laptop with ZoomText, voice reader and inverted colour. The reflection on the screen is important. Mr Hill stated that the setting of the desk has an effect on his positioning. At the moment, he uses reams of paper to raise the height of his laptop to eye level. Mr Hill uses exclusively his work mobile phone for calls as the desktop phone is not accessible.”

11. The findings and recommendations of the report are summarised as follows:

a) “The corridor leading to offices on the 5th floor would benefit from a more efficient lighting for better perception.

b) Beneficial if he could have total control over the incoming light both natural and artificial depending on the conditions outside.

c) Mr Hill would benefit from an environment where the daylight is less immediate and where he can fully manage the level of brightness.

d) Mr Hill can control the general lighting of the office by switching on and off the lights from the switch panel outside his office. However, a more suitable control of the general lighting with a dimmer would be suggested.

e) Also, the access to a task lighting would be beneficial to facilitate tasks like reading (photo 14)

f) …Mr Hill’s current devices and desk are problematic. Due to the settings of his desk, his posture is far from his laptop screen, and the level of reflection is high. Therefore, Mr Hill reports strain to his eyes while working on his laptop. For this reason, it would be beneficial to have more adapted devices and a better configuration of his workstation.

g) Mr Hill would benefit from being closer to his screen with a curved desk for instance.

h) A larger touch screen would assist Mr Hill in accessing information. Therefore a 27-inch touch screen on an articulating monitor arm would be suggested. The larger screen would allow him to read text on the screen, and the articulating arm would bring the screen closer to Mr Hill when required.

i) As Mr Hill travels for work, a larger touch screen laptop with a lower level of reflection would be suggested.”

12. The only recommendations of the NCBI report to be implemented by the Respondent is the instalment of lighting with a dimmer switch in the Complainant’s office which is set out in more detail below. The Complainant was also recently provided with a desk lamp. These measures do not accurately address the issues of glare and the issues that are outlined in the report are continuing and have been ongoing since 2012.

Laptop/Visual Assistive Devices/Mobile Phone

13. The Complainant initially used a desktop PC to complete his work when he was hired in 2012. He brought some of his own equipment to assist him such as a portable electronic magnifier, CC Camera and screen, and a range of glass magnifiers. While the Complainant has an articulating arm connected to a CC Camera and screen, he does not have an articulating arm for an external touch screen monitor as recommended in the NCBI report.

14. He had ongoing issues with the PC such as crashing and freezing, therefore he was finally provided with a laptop in 2014. As set out above, due to his disability the Complainant requires assistive technology such as ZoomText to enable him to complete his work. ZoomText is a computer accessibility software that allows low vision computer users to see, hear and use everything on Windows desktops, laptops and tablet devices.

15. The Complainant’s laptop that was provided to him in 2014 never worked properly with various issues reported such as the laptop freezing, running very slowly and crashing. The poor performance of the laptop meant that the complainant was in constant direct communication with his IT department.

16. The Complainant’s colleagues received updated laptops, however, despite the Complainant’s laptop experiencing continuous difficulties he was excluded from that process.

17. Due to the Complainant’s disability, it is not possible for him to use another laptop that is not set up specifically for him with the accessibility software. The difficulties caused by the laptop as set out above directly contributed to the Complainant missing meetings and training events and having to work weekends to complete work. The issues have also contributed to feelings of stress and isolation.

18. In 2014 the then Deputy Secretary General, Anne Vaughn,who was the second most senior civil servant in the Department, noted that the treatment of the Complainant was “terrible on a number of levels” and indicated that improved process needed to be implemented. To date the Complainant is still experiencing significant accommodation issues. The email is set out hereto:

“From: Anne Vaughan

Sent: 29 October 2014 12:29

To: Brendan Friel; Tim Duggan; John McKeon

Subject: RE: Paul Hill - Disability Access - PC and laptop issues -

Folks

Noted ……this is just terrible on a number of levels.

Tim / John ……any views on what we should put in place & where & how. Noeleen Higgins in SDU is the Disability Liaison person. Might have a word with Patricia Murphy & get her views.

There are a few things

1/ attitude generally with DSP & how we best accommodate people with disabilities.

With 7,000 staff we must have a variety of different scenarios.

2/ particular technical requirements & the solutions required. (There was an issue

before that came all the way to SG as it was raised at (then) Partnership)

Let me know what ye suggest

Thanks

Anne”

19. The Complainant was hopeful that the reasonable accommodation process would improve and that he would be provided with the reasonable accommodations that he required following this email. When no such improvements were made a year later, the Complainant refused to sign off the mandatory Performance Management and Development Systems (‘PMDS’) for 2014 form in protest against the negative treatment he was receiving. In response, he was informed by his line manager that the HR department had advised that he would not be paid his increments if the 2015 form was left unsigned. He was subsequently informed that HR had reconsidered the matter and agreed to pay him his increments despite the form remaining unsigned.

20. It is submitted that the difficulties as set out above are due to the Complainant’s laptop having an older operating system with the processor not having the capacity to support the ZoomText software. As a result, the laptop could not update the ZoomText software as required, and which created difficulties for the Complainant being able to use the accessibility software to complete his work. Copies of the some of the Complainant’s communications with IT were attached to the submission.

21. In or around September 2021, some seven years after being provided with a non-fully functioning laptop, the Complainant’s issues culminated causing extreme work-related stress so that he was left with no option but to give the laptop to the IT team for three weeks to try and sort out the laptop issues. During this time no replacement laptop with accessibility software was provided therefore he had no choice but to take annual leave during this time.

22. The accessibility and performance issues with the laptop were never resolved. IT advised the Complainant that the laptop was too old and therefore it could not support the required ZoomText software, however he was not provided with another laptop.

23. In late 2021 and again in early 2022, the IT department offered the Complainant a new laptop. He was encouraged to accept a new non-touchscreen, standard laptop. The Complainant requires a touchscreen laptop so that he can manipulate the viewing distance of the screen.The Complainant advised IT that the laptop was not suitable to his needs, and that he required a touch screen laptop. The IT department responded as follows:

“If you are looking for a replacement laptop with a touch screen, then this is outside the norm. Any other solution will require us to procure and build a one-off image on the laptop and subsequently lead to a longer delay. It will also require business case and approval. Can I ask you to go ahead with our normal solution, which is ready now for collection, you can always come back to us after you have used it for a while.”

24. Within the email chain the IT department refer to “most of our ZoomText users” as using a standard laptop with an external monitor. A standard laptop with an external monitor is not portable and therefore not suitable for all the Complainant’s needs due to his job requirements which require inter alia that he sit on various boards/committees and attend/chair external meetings and training events. This Email chain was available.

25. In March 2022 due to the difficulties the Complainant was experiencing, his union representative contacted the Complainant’s employer to request a meeting regarding the Complainant’s reasonable accommodation needs, however the employer refused the meeting and stated the following: “Paul has a laptop (windows 8 installed). However, a replacement laptop with windows 10 has already been ordered but will have to be re-imaged once it arrives with Paul’s profile etc. This will take a few weeks to complete. There could possibly be a delay due to the Ukrainian crisis”.

26. In March 2022, the Respondent employer offered the Complainant an external touch screen monitor, however, after the Complainant requested that the monitor be tested, it was established in April that the external touch screen monitor would not work with the laptop and therefore was not an option.

27. As set out above, the Complainants disability causes increased difficulty in reading and sensitivity to light and glare. Prior to accepting the proposed touchscreen laptop in 2022 the Complainant researched the specifications of the proposed laptop and determined through reviews that the laptop was reported to have high levels of glare with a smaller screen than the previous laptop. The Complainant therefore raised his concerns about the size of the screen and the glare issues with the IT department. He was advised that the laptop “looks like the model below is the only option available at the moment similar to your current Yoga Lenovo Touchscreen”.

28. It is submitted that the Complainant is fully capable of carrying out his role once reasonable accommodation is put in place, however as he was provided with no alternative option for a laptop, he was left in the position of either not being able to complete his work or accept the proffered laptop. Therefore, the Complainant reluctantly accepted the replacement laptop which he did not receive until November 2022. This replacement laptop does have a touchscreen.

29. Although the Respondent has a Disability Liaison Officer (DLO) within the department the Complainant has been communicating directly with the IT department regarding his reasonable accommodation requirements, and he consistently receives push back and feels like to has to fight for every reasonable accommodation request. At one point, the Complainant was, in addition to being asked to accept the ‘normal solution’ as set out in paragraph 23 above, the Complainant was also asked by IT, ‘…what do you mean by reasonable accommodation?” It is very clear from the question that the IT department does not understand the practical and legal requirement of reasonable accommodation.

30. It is submitted that the situation as set out above is a very unsatisfactory and stressful position to put the Complainant particularly in circumstances where the lack of reasonable accommodation has been protracted in circumstances where the Complainant has strived not be defined by his disability within the workplace, but where he has been left feeling humiliated and exhausted.

31. One such recent incident of the Complainant being left feeling humiliated and embarrassed due to the ongoing issues with the laptop was in March 2022 when the Complainant chaired a mandatory meeting of the Disability Consultative Committee. The purpose of the meeting was for the disability representatives to question the department over progress on its actions under the national disability inclusion strategy (NDIS). The representatives then present their findings to the NDIS steering committee that the complainant attends which is chaired by the Minister of State for Disability. The disability representatives withdrew from this meeting as they were very unhappy that they only received the materials the night before the meeting. Providing the materials to the representatives in advance is to provide them time to read and absorb the material, however the Complainant’s laptop issues meant that he could not complete the materials before then. The representatives were deeply unhappy that they were not given reasonable accommodation so as to be able to read and absorb the materials. The complainant had to apologise to the representatives, numerous PO’s and AP’s from across the department also attend these meetings, and the complainant was left looking unprofessional.

32. In addition, part of the Complainant’s job requirement is to read a large volume of documents. Often these documents are scanned through to him, however the documents are not received in an accessible format so that he could have the document read aloud to him.

33. Furthermore, as referred to in the NCBI report the complainant’s office phone is not accessible therefore he exclusively uses his mobile phone for work calls. The Complainant has an iPhone 13 Pro Max, as iPhones have additional accessibility features to that of Android devices. When the Complainant requested an iPhone he received pushback from IT and was told that they do not support Apple products. The phone works well for the Complainant’s needs, however the main issue is when IT updates the departments platforms/applications that there is no communication that they are doing so therefore the Complainant has no notification that he may have to install an update in order to access emails. This issue adversely affects the Complainant as it is directly due to the fact that his office phone is not accessible and the iPhone has more advanced accessibility features than those of androids, in conjunction with the fact that his laptop is susceptible to freezing and crashing that the Complainant finds himself disadvantaged by no notice of the upgrades.

34. Due to the foregoing the Complainant has had to work late evenings and weekends to complete work, cancel countless meetings with staff at short notice due to IT issues, he has had to reschedule time sensitive meetings because of IT issues, and he has had to ask staff to read material to him as a Microsoft Word or Outlook were not usable for him at the time due to IT issues.

Office/Workstation

35. The Complainant’s workstation is unsuitable for his needs; however this could be remedied by a change to a more suitable office space. The issues with the physical layout of his office have been ongoing.

36. The first office that the Complainant worked from was on Pearse Street. He had no issues with glare and reflection from artificial and natural light in this office.

37. The second office the Complainant was moved to was located on Cork Street. He moved all of his technology from Pearse Street to Cork Street office. This office had two walls of windows with venetian blinds. Venetian blinds can cause glare and reflection issues when light filters through the space between the blinds. This office set up caused significant glare on the laptop screen, but it also made it difficult for him to see and recognise faces due to the light, therefore he was at a disadvantage when someone came to his office as he could not readily identify them.

38. The third office that the Complainant was moved to, the Complainant’s current office, is above Bus Aras and is the office that was assessed in the NCBI report. This office causes significant issues for the Complainant as the office has four walls with windows. Blackout blinds have been installed on the wall behind the Complainant’s desk but were not fitted so light comes in on the sides of the blinds. The external window on the right-hand side has slatted blinds so there is reflection and glare coming in between the slats. The Complainant uses sticky notes by placing them where the light comes in through the sides of the non-fitted blackout blinds. He has to also Sellotape sheets of paper on the other two walls to try block the sun. The issues with this office can be solved by installing fitted blackout blinds or moving his office.

39. In April 2020 the Complainant requested reasonable accommodation in the form of a change in office space. The Complainant instructs that there are numerous office spaces on his floor and elsewhere in the building, which would be much more suitable to his needs.

40. As set out above the reason for the request for change of office is that the Complainant’s office space has glass windows on all four walls which causes significant glare, direct sunlight and reflection on his laptop screen, each of which causes significant discomfort to the Complainant. Measures such as venetian blinds, white boards and roller blinds, were implemented however, as confirmed in the NCBI report these measures do not sufficiently reduce the glare caused by the light emanating through the windows and through the sides of the blinds. The report states that the client would benefit from an office space where daylight is less immediate.

41. The NCBI report reported that the Complainant should have total control of all lighting, including natural and artificial lighting and recommended a dimmer switch be installed (see relevant section at page 36 of the booklet of appendices). Without prior consultation the Respondent has installed four new lights with a dimmer switch in the Complainant’s office. All four lights can be turned on or off and dimmed simultaneously, however, he cannot turn one or more of them on or off as required. One of the lights is placed directly over the Complainant’s desk so that it creates increased glare on his laptop screen and cannot be turned off as all four lights are connected. The new lighting causes increased glare and eye strain.

42. The Complainant has never been provided with an ergonomic assessment of his workstation. He requested an ergonomic assessment of his workstation in early 2023 however this has not been provided to date.

43. Following the completion of an online risk assessment conducted as part of the return-to-work process after the Covid-19 pandemic, it was recommended that an ergonomic assessment be completed. This proposed assessment related to both the client’s home and office setup and the ergonomic assessment was recommended for his office setup. The Respondent appeared to have contacted NCBI to conduct an ergonomic assessment of the Complainant’s work office by an Occupational Heath therapist, however it later transpired that the NCBI do not conduct ergonomic assessments.

44. It is submitted that an ergonomic assessment would be beneficial in respect of identifying accessibility issues as the Complainant’s workstation is set up differently to his non-visually impaired colleagues. Currently, the Complainant has a standard desk with his laptop being raised to a sufficient height by stacks of paper so that the screen can be viewed comfortably. The NCBI report states that this setup causes eye strain and recommends that he would benefit from a curved desk so that he could be seated closer to his laptop with a large 27-inch touchscreen monitor on an articulating arm. The Complainant reports that due to his desk set up and therefore his seating position he is suffering from hip and groin pain and is currently using a ring cushion to help alleviate the pain. See letter provided from Professor Connail McCrory in this regard. He instructs, as per the NCBI report, that an articulating arm would assist in bringing the monitor closer so that he could sit back properly in the chair. The Complainant does currently have an articulating arm with an integrated closed-circuit camera and monitor; however, this monitor is not touchscreen, is integrated with the closed-circuit camera and is very old with glare and dull imaging as it has not been updated as set out above.

45. As set out above the NCBI recommended that the Complainant be provided with a large 27-inch touchscreen monitor on an articulating arm. When the Complainant requested this he was asked to provide a medical report justifying the request.

46. It is submitted that there is no statutory basis that provides reasonable accommodation requires a medical report. The author of the NCBI report is an occupational therapist who, it is submitted, would be better able to form an opinion as to Querist’s accommodation needs in respect of his disability than a medical doctor such as a GP. If the Respondent required a medical report before implementing the recommendations as set out in the NCBI report, then they were entitled to have the Complainant medically assessed if they are of the view that the accommodation is disproportionate. It is noteworthy that they did not have him medically assessed and cannot therefore reasonably argue that the accommodations sought were\are unreasonable.

Training.

47. As set out above the Complainant is visually impaired with his condition causing significant glare and light sensitivity. In order to see his laptop screen the Complainant either manipulates the distance of the screen to view or uses assistive technology such as ZoomText. The Complainant cannot see material displayed on projection screens such as would be used in large scale training events.

48. The Complainant attends various training events, some of which are mandatory, but all of which are important for career progression. Many the training events are organised through One Learning which is the Learning and Development Centre of the civil service. Employees can note their accessibility needs on their profile, and as such, the Complainant noted on his profile that he requires documentation at least 5 days in advance of any training. If the training event is in person, the Complainant is unable to see the screen. The provision of training material in advance is so that the Complainant can read the material and follow along with his colleagues. He does not receive documentation five days in advance of training, which has resulted in him leaving training events or not attending. In addition, the Complainant has to request an accessible version of training courses after the material has been released to his colleagues.

49. The Respondent hosts a mandatory annual forum for all employees of the Assistant Principal (AP) grade. Both the 2022 and 2023 annual forums had a number of accessibility issues. Both were in person only events with no online or hybrid option. The Complainant requested that the 2022 event be hybrid, however this request was refused. Also, the invitation to the event did not include an option for the attendees to set out any additional requirements, and when the Complainant raised this as an issue, the Respondent referred to the option to update the ‘One Learning’ platform with any additional needs. This is not a satisfactory response as there may be different accessibility and accommodation requirements for different events.

50. In 2023 the Complainant chose not to attend the second day of the AP forum due to his inability to participate with the presentations. While his colleagues were able to follow the presentations and engage with the material, he was unable to do so as he did not receive the materials in advance and could not see the screen. He was subsequently provided with the material in print form, which he could not read. He was embarrassed and isolated therefore he did not attend the second day of the training. His absence was raised by One Learning with his line manager.

51. It is submitted that the failure to provide for online/hybrid attendance and/or provide training materials in advance of training events has a more disproportionate impact upon the Complainant due to his disability with the result that he is unable to meaningfully participate in training events which can have an adverse impact upon his progression opportunities.

52. It is also submitted that the failure to provide material in advance of work meetings is also problematic as if the meeting is one in which an overhead screen is used then the Complainant will not be able to see the screen.

53. In the circumstances the Complainant is treated less favourably than his colleagues as due to his disability he is unable to participate in meetings and training events as the materials used in the training events are not provided to him in an accessible format.

54. Furthermore, the responses the Complainant receives to his reasonable accommodation requests appear to infer that the Complainant is the problem, and not the Respondent in failing to provide accommodation which further contributes to continuance of the issues. The manner in which the Complainant’s requests for reasonable accommodation are handled has caused him stress and to feel isolated from both management and colleagues. He experiences eye strain, headaches, tiredness and fatigue and has to work longer than other colleagues, including weekends, to make up for lost time during the week due to ongoing accommodation issues, including IT issues.

Victimisation

55. It is submitted that the Complainant was victimised as a result of raising the issue of discrimination. Section 74(2) states as follows:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act ,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000, or which was unlawful or any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

56. In order to establish victimisation, the Complainant must, as set out in Public Appointments Services v Roddy EDA1019 establish the following:

“‘The definition of victimisation contained in the Section contains essentially three ingredients. It requires that: -

(a) The Complainant had taken action of a type referred to at Section 74(2) of the Acts (a protected act),

(b) The Complainant was subjected to adverse treatment by an employer and,

57. On 23rd March 2022 the Minister of State for Disability was to appear before the Joint Oireachtas Committee on Disability Matters. The Complainant’s duties would be to prepare the materials, opening remarks, answers to possible questions, attend a briefing with the minister before the event, and attend the event to support the minister. Before the meeting with the Minister, the Complainant was told by the Principal Officer that it was decided by the Assistant Secretary that he was not to attend the briefing with the Minister. He was advised that if he was unhappy about this decision, he could call the Assistant Secretary. Another AP from the unit was brought to the briefing with the Minister, however, the Complainant was both the longest serving staff member and AP in the unit and it was his role to oversee the area. Not being part of the briefing with the Minister for his own area was deeply undermining. The Complainant felt that the decision to have him not attend was personally and professionally humiliating.

58. The Complainant was transferred in 2018 and 2023. It is submitted that the transfer in 2023 was an act of victimisation due to the Complainant’s complaints regarding the Respondent’s failure to provide reasonable accommodation and his intention to raise a complaint to this board about his issues obtaining same.

59. On or around October 2022 the Complainant’s Union representative informed the Respondent that the Complainant intended to lodge a complaint with the WRC. On or around 11 January 2023, the Complainant was informed by his manager that he was being transferred to One Parent Child Income Policy. The Complainant and his PO raised a number of reasons why the transfer did not make business sense such as that the PO was leaving her position and the Department that same month and that the person who would be the Complainant’s replacement was retiring in the next year.

60. It is submitted that the Complainant felt relegated to a position which does not have the same progression opportunities as that of his previous role. While it is true that the roles are the same grade there are differences in responsibilities including interactions with external stakeholders and the number of staff reporting to him.

61. In addition, the Complainant’s previous role was in the Disability, Employment Policy and Income Supports section where he had regular engagement with non-government stakeholders in relation to disability and reasonable accommodation matters. Within this role he was on several related steering and implementation groups and had contact with many influential actors in this sphere. It is submitted that the transfer was designed to remove him from these circles in circumstances where he had made a complaint of discrimination against the Respondent.

Performance Management and Development System (PMDS)

62. The Complainant is required to complete a performance management form annually. The performance management system (PMDS) is not available an in accessible format. The Complainant managed to complete the form, albeit, with much difficulty, between 2012 and 2021, however it would take him significantly longer to complete the form than it would his colleagues.

63. In or around late 2020 or early 2021, the Complainant requested an accessible version of the form for the 2021 period, and the Respondent advised that there was no such format available. The Complainant asked his Union, the AHCPS, to act on his behalf in relation to accessing an accessible version of the form. In November 2021 the Respondent provided the Complainant with a Word version of the form. The first Word version was not accessible at all as the formatting was completely skewed. The second Word version of the form was also not fully accessible. The PMDS form has drop down options for some of the questions however, the Word version of the form did not provide the drop-down options and he would have to type the answers in full.

64. Due to the aforementioned the Complainant has not completed the PMDS form since 2021. He has instructed that he has not completed the form since 2021 due to the fact that the form remains inaccessible. It is also noted that the most accessible form was provided to the Complainant in November 2021 and he was requested to retrospectively fill out the form for the 2021 period. The PMDS system is designed to support professional development for all staff and it directly impacts on promotional opportunities. As a direct result of the inaccessibility of the form, the Complainant has not been able to engage in this process fully since 2021, with negative consequences on his career progression opportunities.

Legal Submissions

65. In asserting a claim of discrimination, the burden of proof is governed by Section 85A (1) of the Employment Equality Act 1998, provides as follows:

‘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.’

66. Section 85A requires the Complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment on the basis of disability. It is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination raised.

67. In DPP V Sheehan DeterminationEDA0416 (14th December 2004), the Labour Court stated:

“what the complainant must establish is a factual matrix from which the Court may properly draw an inference that discrimination has occurred.”

68. In the recent case of Tracy Ahern v Department of Employment Affairs and Social ProtectionADJ-00037964, 18 July 2023, the WRC set out the burden of proof in respect of discrimination claims. The commission stated:

“Section 85A of the Employment Equality Acts 1998 to 2015 provides that: Where in any proceeding’s 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. As such the burden of proof in this matter is on the Complainant. If the Complainant’s case meets the threshold set out above, then the burden of proof is reversed, and it is on the Respondent to rebut the above presumption of discrimination.”

69. A Complainant therefore must prove the primary facts on which he relies in seeking to raise a presumption of unlawful discrimination. In Labour Court Decision Valpeters v MelburyDevelopments [2010] ELR 64 the Court states as follows with regard to the standard of evidence required to establish a prima facie case of discrimination:

“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 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 this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence.”

70. It is submitted that the fact that the Complainant was treated differently, and less favourably by the Respondent on the grounds of disability cannot be credibly challenged. Due to protracted IT issues with his laptop such as freezing and crashing the Complainant takes longer to complete his work than that of his colleagues who do not have a disability. In addition, he does not have the same opportunities for meaningful attendance and/or participation at training events compared to those of his colleagues who do not have a disability. Furthermore, the failure of the Respondent to provide reasonable accommodation through accessible training events directly impacts upon the Complainant’s promotional opportunities unlike those of his non-disabled colleagues. The Complainant was therefore treated less favourably than those without disabilities. The Respondent, therefore, has failed in its obligations under the Employment Equality Act, 1998.

71. It is submitted that given the circumstances set out above, the Complainant has established a prima faciacase of discrimination on the basis of disability.

Disability

72. Disability pursuant to the Employment Equality Act, 1998 is defined under section 2 of the act which states as follows:

“’disability’ means—
		(a) the total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,
		(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
		(c) the malfunction, malformation or disfigurement of a part of a person's body,
		(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
		(e) a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
		and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”

73. The Complainant has a visual impairment, which is a disability within the meaning of the Employment Equality Acts 1998 to 2021. The fact that the Complainant has a visual impairment and thus a disability is not in dispute.

Reasonable Accommodation

74. Section 16(1) of the Employment Equality Act 1998 state as follows:

“16.— (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.”

75. Subsection 3 of the Act states as follows:

“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 that 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.

(c) in determining whether the measures would impose a disproportionate 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”

76. Appropriate measures refer to effective and practical measures adopted by the employer to the employer’s place of business to assist the person with the relevant disability to conduct their work. Such measures include the adaptation of premises and equipment, patterns of working time, methods of work, distribution of tasks, the provision of training, integration resources, seeking appropriate funding for modifications to the premise and or the provision of specialised equipment to assist the employee.

77. It is submitted that appropriate measures include inter aliaimplementation of the recommendations of the NCBI report such as an office that does not exacerbate the Complainant’s disability and thus his work performance, providing a laptop that is fit for purpose so that the Complainant can use the assistive technology required to complete his work, adaptation of training events to provide for online attendance and/or the provision materials in advance so that the Complainant can meaningfully participate. Also, in relation to the laptop it is noteworthy that the IT department do not say that it is impossible to provide a laptop that can support the assistive technology required by the Complainant, but that it is not their ‘standard’ request.

78. Section 6(1)(a) of the Act provides that discrimination occurs when a person is treated less favourably than another person in a comparable situation. Therefore, for direct discrimination the Complainant must identify a comparator with the comparator being someone who is in the same or similar situation to the Complainant but who does not have a disability. Indirect discrimination may occur when an apparently neutral provision, criteria or practices puts a person with a particular disability at a disadvantage compared with other persons who do not have a disability. In Victoria Purtill v Aer Lingusthe WRC referred to the European Court of Justice’s decision in DW Nobel Plastiques Iberica SAand stated:

“The Court of Justice had held that any apparently neutral criterion which places a person with a disability at a disadvantage and exposes a person with a disability at an additional risk, as compared to non-disabled persons, is indirectly discriminatory on the grounds of disability.” [1]

79. Applying the above situation to the current circumstances such as the failure to provide training via hybrid or online or to provide materials in advance and the policy of the provision of pdfs without the ability to have the pdf read aloud, while it may seem non-discriminatory it can be argued that it can be considered both directly and indirectly discriminatory in relation to an employee who has a visual impairment.

80. In the current circumstances, the Complainant can point to those who carry out work for the employer unhindered by a disability, and without the need for reasonable accommodation. Section 16(3) of the act states as follows:

“For the purposes of this section 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.”

81. The Complainant is fully capable of carrying out his role once the ‘appropriate measures’referred to above are carried out by the employer. Therefore, in simple terms the Complainant’s case is that his employer, in denying him reasonable accommodation in the form of appropriate measures to assist him in carrying out his role, has been discriminated against on the basis of his disability as his disability is negatively affected by the lighting and other issues causing eye strain, it takes him longer to complete tasks than his colleagues due to technology often requiring him having to work over the weekend, and he is hindered in in participating training and other events which impacts upon promotional opportunities. All of these matters could be resolved with the necessary accommodation.

Victimisation

82. Examples of adverse treatment which took place after the Complainant raised issues regarding his disability are as set out above, particularly, the transfer of roles in 2023 where, after he made a complaint of discrimination and the failure to provide accommodation to the WRC, he was moved from a position in which he had responsibility for Disability, Employment Policy and Income Supports for people with disabilities, where he had regular engagement with both governmental and non-government stakeholders in relation to disability and reasonable accommodation matters and in circumstances where both he and his PO challenged the move as it did not make business sense such as the PO was leaving her position and the Department and the replacement was due to retire. In addition, the new role does not have the same progression opportunities as that of his previous role and the Complainant can identify comparators who commenced employment the same years as himself but who have progressed to a position above that of AP.

83. It is submitted that the transfer was designed to move him from the Disability, Employment Policy and Income Supports circles in circumstances where it could be damaging to the departments reputation if it became known that the Complainant had made a complaint of discrimination. The transfer was to the Complainants detriment and was as a result of him making a complaint regarding his disability.

Reasonable Accommodation

84. In Daly v Nano Nagle [2019] 30 ELR 221 the Supreme Court Held as follows:

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

85. In the current circumstances, there was ‘no consultation or other necessary steps for compliance’ taken by the Respondent. Rather, lights were installed in his office without consultation, the Complainant was requested to accept the ‘standard’ laptop. In addition, no ergonomic assessment was undertaken by the Respondent to identify the Complainant’s needs and indeed the assessment undertaken by the NCBI was at the Complainant’s request.

86. Any efforts made to consult on the necessary reasonable accommodation were made by the Complainant and subsequently ignored by the Respondent. Indeed, a meeting requested by the Complainant’s union representative and the Respondent in March 2022 was refused. Had the Respondent engaged with the Complainant it is submitted that many of the issues could have likely been resolved as they are not financially onerous.

87. It is submitted that the Respondent have not complied with their own Code of Practice for the Employment of People with a Disability in the Civil Service, the relevant section of which provides:

“198. The following principles apply in relation to the working environment of employees with disabilities in the Civil Service.

199. The Civil Service policy on the employment of persons with disabilities aims to create a working environment in which differences are respected and in which people, employees, clients and customers are valued as individuals.

200. Departments and Offices must take all reasonable steps to provide employees with disabilities with a workspace compatible with their particular needs. Account needs to be taken of both the interior and exterior working environment. Competent advice, from a person qualified to assess ergonomics, may be required to satisfy particular needs.

201. All buildings occupied by employees with disabilities should comply with the most up-to-date relevant building regulations in respect of access, egress and utilization of buildings.”

88. The Respondent may seek to claim that they have provided what is required of them in terms of reasonable accommodation with regard to section 16(3). In that regard, the financial costs involved to carry out the modifications contained in the NCBI report are relatively modest, yet they have not been carried out adequately or at all. The financial resources of the employer, being a state department, are considerable, and certainly should stretch to the relatively modest modifications required in this instance.

Conclusion

89. It follows that the Complainant has been subjected to ongoing discrimination on the basis of his disability for protracted period.

90. The Respondent has failed in its duty to consider ‘appropriate measures’ and to conduct the required consultation with the relevant parties. No consideration whatsoever was given to the recommendations of the NCBI report which said measures should have been put in place.

91. As such, the Complainant has suffered discrimination on the basis of disability for a protracted period of time and has suffered significant detriment arising from said discrimination. He has also suffered victimisation as a consequence of making a complaint of discrimination. It is submitted that the Complainant is therefore entitled to significant compensation.

SUPPLEMENTAL SUBMISSION ON BEHALF OF THE COMPLAINANT

1. This submission is made supplemental to the Complainant’s primary submission in these proceedings dated 31st October 2023. The purpose of this supplemental submission is to place both the WRC and Respondent on notice of relevant case law which Counsel may wish to rely on in the course of this hearing.

2. For the avoidance of doubt the Complainant continues to rely on the factual account that has been set out in detail in his primary legal submission and which has been relayed in oral evidence before the WRC hearing on the last occasion.

3. In our primary submission we have referred to the legal test that the Complainant must meet in order to establish discrimination. We have also set out the law in relation to victimisation and reasonable accommodation, referring in particular to the Supreme Court’s decision in Nano Nagle.

4. However, it is respectfully submitted that further legal issues also arise in the course of these proceedings such as the obligation on an Employer to ensure that a full understanding of an employee’s disability has been obtained. The Complainant also wishes to refer to recent case law from the European Court of Justice (CJEU) in relation to direct and indirect discrimination.

Medical Evidence

5. It has been well established in Irish law that the starting point for any employer, called upon to provide reasonable accommodation for an employee with a disability, is to ensure that a full and comprehensive medical analysis of the employee’s disability is obtained. There is a further consequent obligation on the Employer to carry out an additional assessment in order to understand how the said disability may affect the employee’s ability to perform their work duties. The leading authority setting out this obligation is Judge Dunne’s (as she then was) decision in Humphreys v Westwood Fitness Club (2004)E.L.R. 296 300. In this Circuit Court determination Judge Dunne set out the employer’s obligation as follows:

“This Section, on which the respondent relies, can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the complainant is not fully capable, within the meaning of the section, of performing the duties for which they are employed. However, before coming to that view the 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 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 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”.

6. This approach was subsequently followed by the Labour Court in Shannon Regional Fisheries Board and A Worker (Determination EDA1318) where the Court stated:

"The general principles set out in Humphries v Westwood Fitness Club require an employer to make a bona fide and informed decision concerning a disabled employee's capabilities before concluding that he or she is unable to perform the duties of their employment. The test is an objective one to be applied by reference to the range of responses to be expected of a hypothetical reasonable employer, faced with similar circumstances, seeking to reach a fair and balanced conclusion having full regard to the right of a disabled person to work and earn a livelihood within the constraints occasioned by their disability. At a minimum, it requires the employer to fully and properly assess all of the available medical evidence and, where necessary, to obtain further medical advice where the available evidence is not conclusive. "

7. It is common case between the parties that the Respondent herein did not at any time have a medical or related assessment of the Complainant’s disability carried out. Nor was there any attempt to assess comprehensively the level of reasonable accommodation that he may require in order to carry out his role. Accordingly, it is submitted that the Respondent herein has not complied with either of the aspects of the test which has been set out in Humphreys v Westwood Fitness Club.

8. Since joining the Respondent as an Assistant Principal in 2012 the Complainant has continually placed the Respondent on notice that due to his visual disability he faced certain ‘hindering’ challenges in carrying out his duties. These challenges, however, are fully surmountable once appropriate reasonable accommodation is provided. It is further submitted that the level of reasonable accommodation required could not in any way be described as overly onerous or at a level which would place a disproportionate burden upon the Respondent which is not objectively justifiable.

9. Instead, the Respondent’s response has been, at best, piece-meal and can more generally been characterised by on-going resistance to implementing measures that would ensure a significant improvement in the Complainant’s workplace experience. For example, it is common case that the Respondent refused the Complainant’s request for an ergonomic assessment in 2020. It is also respectfully submitted that there has been no proper follow up on the report on the Complainant’s needs which was prepared by the NCBI (set out in detail in our primary submission). Indeed, senior management within the Respondent also refused to meet with the Complainant’s union representative to discuss his workplace issues.

10. Somewhat bizarrely in their initial submission the Respondent states that the Complainant has been the only member of the Respondent’s 6,700 strong workforce to be facilitated with an Apple iPhone. While there is no doubt that being eventually provided with an iPhone was of assistance to the Complainant in the course of his duties, it has to be said that this response was relatively minor in the context of the Complainant’s needs. Therefore, the fact that the Respondent would highlight this issue would appear to emphasise a lack of understanding of the obligations of reasonable accommodation that an employer must meet. The obligation is to address the general challenges caused by the disability and not stress relatively minor contributions that are made. Logic would suggest that the fact that the Complainant can be distinguished from all other employees in the Respondent’s department, implies a greater impetus on the Respondent to ensure that a full understanding of the Complainant’s condition and level of reasonable accommodation required, was obtained.

Indirect Discrimination

11. While the Complainant has already set out in his primary submission details of repeated instances of direct discrimination that he has experienced, it is respectfully submitted that he has also been the subject of repeated instances of indirect discrimination in the manner in which he has been dealt with by the Respondent.

12. The CJEU has held that indirect discrimination occurs where an apparently neutral provision, criterion or practice would put person with a disability (or other protected ground) at a particular disadvantage compared with other employees, unless the common practice applied can be objectively justified by an employer on the basis that it meets a legitimate aim.

13. In the case of C-550/07 Akzo Nobel Chemicals Ltd and Akcros Chemicals Ltd v European Commission EU:C:2010:512, the CJEU re-iterated its commitment to the equality of treatment to ensure that discrimination both direct and indirect does not take place.

“54 It must be recalled that the principle of equal treatment is a general principle of European Union law, enshrined in Articles 20 and 21 of the Charter of Fundamental Rights of the European Union.

55 According to settled case-law, that principle requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see Case C-344/04 IATA and ELFAA [2006] ECR I-403, paragraph 95; Case C-303/05 Advocaten voor de Wereld [2007] ECR I-3633, paragraph 56; and Case C-127/07 Arcelor Atlantique et Lorraine and Others [2008] ECR I-9895, paragraph 23).”

14. The Respondent’s repeated failure to acknowledge that the Complainant’s disability requires different treatment is illustrative of indirect discrimination. Unfortunately, it has been the Respondent’s experience (as detailed in his primary submission) that he has been repeatedly required to comply with department wide approaches applied by the Respondent which made no allowance for the existence of this disability. Quite simply no allowance was made for the fact the Complainant, though fully competent to fulfil his role as an Assistant Principal, be unable to participate in work practices on the same basis as his work colleagues.

15. The Complainant’s disability herein clearly comes within the definition set out by the CJEU in Jette Ring v Dansk almennyttigt Boligselskab (C-335/11) (ECJ decision 2013). In this case the ECJ was called upon to define whether an illness could constitute a disability within the meaning of the Employment Equality Directive 2000/78/EC. The Court found that it could and accordingly widened the definition of what constitutes a disability for the purposes of the directive as follows:

“The concept of ‘disability’ in Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one. The nature of the measures to be taken by the employer is not decisive for considering that a person’s state of health is covered by that concept.”

16. It is also the case that in its most up to date case law the CJEU has held that that a physical impairment which “hinders” a complainant in the course of their duties will constitute disability. In DW v Nobel Plastiques Iberica C‑397/18 the Court said:

“…. following the European Union’s approval of the UN Convention, the Court took the view that the concept of ‘disability’ within the meaning of Directive 2000/78 must be understood as referring to a limitation of capacity which results in particular from long-term physical, mental or psychological impairments which, in interaction with various barriers, may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers (judgments of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 38, and of 18 January 2018, Ruiz Conejero, C‑270/16, EU:C:2018:17, paragraph 28).

It does not appear that Directive 2000/78 is intended to cover only disabilities that are congenital or result from accidents, to the exclusion of those caused by illness. It would run counter to the very aim of the directive, which is to implement equal treatment, to define its scope by reference to the origin of the disability (see, to that effect, judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraph 40).

65. As set out in recitals 20 and 21 of Directive 2000/78, the employer must take appropriate measures, i.e. effective and practical measures to adapt the workplace to the disability, for example by adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources, without imposing a disproportionate burden on the employer, taking account, in particular, of the financial and other costs entailed, the scale and financial resources of the undertaking and the possibility of obtaining public funding or any other assistance.”

17. The CJEU has repeatedly held that employees whose condition or disability comes within the Jette Ring definition, as set out above, must have their needs accommodated unless there are objectively justifiable reasons for not doing so. In the recent CJEU decision of C 824/19 TC & UB v KOSIA the Court emphasised the continued relevance of Recitals 16, 20, 21 and 23 of Council Directive 2000/78/EC which have been set out below.

16. “The provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability.

20. Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources.

21.To determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance.

23.In very limited circumstances, a difference of treatment may be justified where a characteristic related to religion or belief, disability, age or sexual orientation constitutes a genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate. Such circumstances should be included in the information provided by the Member States to the Commission.’”

18. In TC & UB v Kosia the CJEU went on (at paragraphs 35 & 36) to re-affirm that it is essential that all employees benefit from equal treatment.

“At the outset, it should be borne in mind that it is clear from the title of, and preamble to, Directive 2000/78, as well as from its content and purpose, that that directive is intended to establish a general framework for ensuring that everyone benefits from equal treatment ‘in matters of employment and occupation’ by providing effective protection against discrimination based on any of the grounds listed in Article 1 thereof, which include disability (judgment of 15 July 2021, Tartu Vangla, C‑795/19, EU:C:2021:606, paragraph 26 and the case-law cited).

As follows from Article 3(1)(a) and (c) of Directive 2000/78, within the limits of the areas of competence conferred on the European Union, that directive applies to all persons, both in the public and private sectors, including public bodies, as regards, inter alia, conditions for access to employment as well as employment and working conditions.”

19. In the recent case of Tartu Vangla, C‑795/19 which concerned an Estonian Prison Officer who had a hearing disability, the CJEU re-iterated the obligations on an Employer, set out in Directive 2000/78 must be interpreted in accordance with the United Nations Convention on the Rights of Persons with Disabilities. It said:

48 “It should be recalled that, under Article 5 of Directive 2000/78, read in the light of recitals 20 and 21 thereof, employers are to take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment unless such measures would impose a disproportionate burden on the employer. Indeed, according to recital 16 of that directive, the provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability. In that regard, the Court has held that the concept of ‘reasonable accommodation’ should be understood broadly as referring to the elimination of the various barriers that hinder the full and effective participation of persons with disabilities in professional life on an equal basis with other workers. Moreover, recital 20 contains, in that regard, a list of reasonable accommodation measures of a physical, organisational or educational nature, which is not exhaustive (see, to that effect, judgment of 11 April 2013, HK Danmark, C‑335/11 and C‑337/11, EU:C:2013:222, paragraphs 54 and 56).

49 Such an obligation is also enshrined in the United Nations Convention on the Rights of Persons with Disabilities, which was approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009 (OJ 2010 L 23, p. 35), the provisions of which may be relied on for the purposes of interpreting the provisions of Directive 2000/78, so that the latter must, as far as possible, be interpreted in a manner consistent with the convention (see, to that effect, judgment of 11 September 2019, Nobel Plastiques Ibérica, C‑397/18, EU:C:2019:703, paragraph 40).”

ADDITIONAL SUPPLEMENTAL SUBMSSION ON BEHALF OF PAUL HILL

1. This short supplemental submission is prepared on behalf of the Complainant in order to place both the WRC and the Respondent on notice of issues relating to the herein complaint which have arisen since this hearing into this matter was last convened. Unfortunately, the Complainant believes that the issues highlighted are reflective of a culture that has yet to fully change.

2. While making this additional submission the Complainant again wishes to acknowledge the work of the high-level Committee which was set up at the request of the WRC and which resulted in considerably improved reasonable accommodation being provided to him.

3. On the last occasion the Complainant reported in good faith that as a result of the work of the Committee that he had experienced significant improvements including the provision of a much more suitable office as well as certain technological assistance.

4. However, in the intervening period two further issues have occurred which directly relate to the Complainant’s entitlement to reasonable accommodation and which again highlight, it is respectfully submitted, a failure on the part of the Respondent to meet their obligation to provide reasonable accommodation.

PMDS Assessment

5. The first issue relates to the Complainant’s PMDS assessment for 2023 and which took on a greater significance this year as it was related to the Complainant’s entitlement to a higher pay grade.

6. On 22nd August 2024 the Complainant received an email from Ms Barbara Thomas, HR Workforce Planning, Competitions Team whichsaid.

Dear Paul,

I am currently looking at the 2023 AP higher scale assignments and you may be eligible to submit an application.

Part of the process requires all candidates to have completed their 2023 PMDS and received a satisfactory rating.

Our records show that your 2023 PMDS is outstanding.

Please complete and return no later than Wednesday 28th August, and let me know once it is finalised?

7. The Complainant replied immediately confirming that his 2023 PMDS assessment had not been completed. He also pointed out that he had difficulties completing the PMDS form in its standard format and suggested that in the circumstances an alternative such as interacting with his line manager might be equally suitable. He said:

Hi Barbara

Many thanks for your email, I’d be delighted to make an application for promotion to the AP higher scale. Re PMDS, unfortunately I’ve experienced difficulties with regards to reasonable accommodation and the PMDS process and can revert to you on this separately – FYI other HR colleagues aware of this (in Darren Malones section).

In terms of my performance, if HR could touch base with my PO I’m very confident she will quickly confirm my performance has been satisfactory. My PO (Dearbháil Nic Giolla Mhicíl) is currently on leave but returning next week – on Tuesday 3rd of September.

8. However, the Complainant was told that his PMDS assessment had to be completed in the traditional manner and to try and assist him he was provided with the PMDS form in word format. On 29th August 2024 he received the following email from Ms Barbara Thomas

Dear Paul,

We will give you until Friday the 6th September to get your 2023 PMDS completed with Dearbháil.

The PMDS team have advised us that there is an accessible PMDS form in place and someone from Darren Malones team will be in touch with you in relation to that.

9. The Complainant attempted to complete the form as best he could. On 6th September 2024 the Complainant wrote to Darina Breen,Employee Relations and Industrial Relations, Team Lead HEOenclosing his PMDS form which had been signed off as satisfactory by his manager Ms Dearbhail Nic Giolla Mhicil, he then said:

I’d huge difficulties completing this form, it took part of Tuesday and nearly all of Wednesday just to sort the form (see below) - as the PMDS form the department provided me with on the 29th of August 2024 is:

Not complete and is not accessible

1. The competency sections for each of the four Goals (pages 2 to 6) is not included.

2. The completion of the competency sections is a key part of the Learning and Development Plan (pages 7 and 8).

3. The ‘Form’ provided has been created as a Table

– which means when you type in a box the text disappears. I was left then having to drag lines around on the screen to try and see / read text typed - have to try to expand individual boxes in a table.

4. You will see photos of the competency sections missing attached.

5. I took these photos with my mobile – of the online PMDS site / version.

6. I’d to print these photos – needed editing and formatting to fit on individual pages - at home from my mobile.

7. I then had to hand write on them – a numbering / reference system.

8. I then scanned each photo and created a single document

9. I emailed the photos from my Gmail to my work email.

10. I then had to email this document to my manager with the remainder of the PMDS form.

11. My manager was able to use the document with the form to review my performance.

I met my manager on Thursday the 5th at 3.30pm:

Please note:

a) I requested an accessible version of the form for PMDS 2021.

b) I object strongly to having to do PMDS retrospectively, in September 2024 for 2023. PMDS is designed to be a proactive process – planning for the year ahead: goals are set, learning and development plans are discussed and agreed. a mid-year review discussion takes place and an end of year review discussion takes place.

c) In 2021 (12th March, emails attached) I received emails from HR stating “I would assume that a programme utilised by a visually impaired individual would be what is normally used to convert all formats i.e. word docs, pdf etc into a format they themselves can access’ This is what was used by a former colleague in the Financial Services & Pensions Ombudsman”. “I am not aware that the PMDS form comes in a different format apart from a paper form but this has limitations i.e. only accepts 4 goals and a limited input for narratives…”.

The form provided by HR on the 29th of August 2024 has the same issues as the paper version – but it is more limited and is not accessible.

d) I’m very keen to pursue my career, and in this case the higher AP pay scale. Given HRs insistence, as per the emails below, that I won’t be considered for the higher pay scale unless I complete this form / PMDS for 2023, I’ve had to use the form provided and undertake all the above to do so.

Regards

Paul

Laptop

10. The Complainant has also experienced on-going difficulties in obtaining a suitable laptop to carry out his work duties. On the 28th August 2024 the Complainant received the following email from Ms Rhona Grant, Assistant Principal officer, ISD Customer Services:

Hi Paul,

In relation to your request for a device with a display larger than 14” in a 2-in-1 foldable format we previously wrote to let you know nothing suitable that met both your own and the Departments requirements was available on the market at the time.

As the market is constantly changing we have been keeping a close eye to identify if something became available. A 16” device was identified recently that met both sets of requirements but unfortunately only comes in a glossy finish which is something you previously expressed was not suitable. We enquired if it could be made available in a matt finish but this is not possible.

The two options we now have available are a 14” ThinkPad X1 2-in-1 Gen 9 (lenovo.com) which is available with an ‘anti-reflection’ finish or the standard 16” Lenovo Thinkpad P16s https://psref.lenovo.com/Detail/ThinkPad_P16s_Gen_2_Intel?M=21HK0016UKwhich is available for use immediately.

If you could revert to me on which option you would prefer by close of business Friday 6th September I’d appreciate it.

11. On 2nd September 2024 the Complainant responded as follows:

Hi Rhona and colleagues

Thank you for your email.

As you are aware from both the NCBI report of April 2023 and the two previous laptops purchased, that due to my disability I require a laptop capable of supporting Zoomtext with a screen larger than 14’’, with anti-glare and that is foldable. Neither of the two suggestions put forward by you meet these requirements.

(folks your persistent offering of a standard laptop, given the above and as same has been discussed extensively over the years is just deeply hurtful and demoralising and shows a failure to understand disability at a simple human level)

Rhona you will recall that I sent an email, with Tim and Deirdre on same, on 16 June 2024 with links to some potential possible options / sources for suitable laptops. I would be very grateful if you could please acknowledge receipt of this email and let me know if the Department has considered providing me with any of the options or contacted any of the providers in the email.

I am grateful that you are continuing to monitor the market. Could you please clarify whether this includes the wider market or if it is limited to the procurement channels the Department is currently engaged with.

In relation to my home set up, Rhona could you set up a Teams call with Peter and I so we can arrange same please.

Folks, I would be very grateful if you could please arrange (with / through other colleagues as needed) for an ergonomic assessment of my new office set up. Due to my disability, my set up is different to the norm and I want to ensure the difficulties I’ve experienced, due to the previous office set up, don’t continue.

12. On 18 September 2024, the Complainant received a further email from Ms Rhona Grant, Assistant Principal officer, ISD Customer Services:

“Hi Paul,

I received your email of 17th June and went directly to three of the suppliers listed including several resellers with the necessary requirements. There were various reasons these devices did not meet the requirements of the Department, or you own needs. Reasons outlined were not limited to the fact that they did not run on a stable image platform which would allow the Department to upload their image – hence you would not be able to login remotely to the Departments network. Other reasons include that they did not have the functionality to allow the device to enable BitLocker or encryption which is a basic security requirement of any Departmental laptop and many of the larger foldable devices come with toughened glass which is not available in a matt finish.

The Department has gone direct to three of the largest manufacturers of devices as well and two resellers which sell all makes and models and cover both business and consumer devices. All the devices outlined by yourself in your email would have been covered by contacting these companies.

As I outlined, we have and will continue to monitor the market but no manufacturer or re-seller to date has been able to come up with a device to meet all the necessary requirements, but for the moment the options outlined to you in my last email are all that is available. It is completely outside our control.

I will discuss home setup with Peter Brennan from FMU and we will revert to you.”

Conclusion

13. It is respectfully submitted that the above email content is reflective of on-going challenges that the Complainant continues to experience in the course of his work as an Assistant Principal in the Department of Social Protection.

14. It is fully accepted that the Department of Social Protection’s obligation to the Complainant extends only to providing accommodation to employees that is deemed to be reasonable.

15. However, it is respectfully submitted that failing to provide Complainant with an alternative way of having his PMDS assessment carried out, which would clearly appear to be non-onerous, is indicative of a culture non-accommodation within the Department. As stated above the Complainant had identified the difficulties he had completing the PMDS form in 2021, however, the challenge was obviously heightened in this instance as a pay-increase was dependent upon it.

16. Again, the on-going difficulties with securing an appropriate laptop, it would appear, could easily be addressed with some increased lateral thinking on the part of management within the Department.

17. The well-known Austrian American Management Consultant Peter Drucker (1909-2005) famously came up with the phrase that “culture eats strategy for breakfast,” the implication being that the culture of an organisation is particularly difficult to shift no matter what the strategy.

18. While it is acknowledged that the Department under the auspices of the WRC assembled a high-level committee – with some success - to tackle the issues the Complainant was facing, it is particularly disappointing that the positive work engaged in by that committee has not translated or permeated into the wider culture within the Department of Social Protection

Summary of Respondent’s Case:

Introduction.

1. The complainant claims

a) Discrimination on the disability ground

b) A failure to provide reasonable accommodation

c) Victimisation, in particular with a change of duties.

2. It is accepted that the complainant has a visual disability and had this disability during the employment. It is accepted that the complainant has a loss of central vision resulting in a difficulty, amongst other things , in reading and recognising people.

3. The complainant has been employed by the DSP since 1st January 2012.

Support Generally.

4. The DSP has a number of departments or roles which ensure that consideration is given to the provision of reasonable accommodation on the basis of an individual’s needs. These include:

ATO Assistive Technology Officer

DLO Disability Liaison Officer

ISD Information Services Division, which has expertise in adaptive technology

There was some liaising with the NCBI on some of these issues.

5. There will always be some problems with information Technology. There are many aspects of the overall information technology system including security, various databases, hardware and software. The DSP cannot guarantee that all technology will work perfectly or integrate perfectly together at all times. However, the DSP strives to ensure efficiency and functionality. This is true whether an employee has a disability or not.

6. DSP’s Information Services Division (ISD) has documented the numerous items of IT equipment and the resources provided to support the claimant in his employment with DSP since 2012.

7. The claimant has had access to, and was in regular contact with, sometimes daily, the Assistive Technology Officer (ATO). Accordingly, any concerns or issues can be raised quickly and are always dealt with in a prompt manner.

8. The laptops, mobile phones, IPAD, Personal Computers provided to the claimant at material times have been itemised for this hearing.

9. There have been many service desk calls logged by the claimant regarding PC issues. There have been a mix of issues with Zoomtext and slow response times and reports of PC’s crashing. Further detail on these alongside the relevant dates have been supplied as supporting documents.

10. Many of the issues reported relating to user error and lack of technology knowledge by the user. All of these issues were satisfactorily resolved by the ATO/ISD team.

11. As set out hereunder, ISD provided the claimant with the following accommodations:

· Upgrade to his office desk PC to allow access to all his systems

· A replacement laptop with Windows 10 was supplied (11/10/22), there were supply delays in getting this laptop to the claimant however, these were outside the control of DSP.

· IPhone (top of the range) which allows claimant to access his emails.

· iPad Pro which allows the claimant to read his emails.

12. The DSP does not support Apple products. The claimant has been upgraded with a newer iPhone and iPad in the period complained of. The claimant , on an exceptional basis, is supported in these products by the ATO who gives a dedicated one-on-one support in respect of Apple devices – the only officer of the DSP’s 6,700 staff to be assisted in this manner.

Laptop.

13. The laptop, provided in October 2022, was specifically requested by the claimant to his own specifications and had to be configured to work in a secure manner within the DSP. The laptop provided was of a very high specification and specifically requested and chosen by the claimant at the time. The laptop was bought in outside of normal supply chains and also had to have a bespoke configuration. This presented some technical difficulties which required outside expertise to be brought in to resolve.

14. The Windows 8 Operating System and Internet Explorer was adequate at the time. The operating system was fully compatible with the version of Zoomtext that was installed at the time.

15. Between 2014 and 2020 there were no major issues with the laptop that the claimant was provided with. While the claimant reported issues, these were found to be minor issues some of which were due to the claimant making changes to his own setup i.e., Windows themes. Others were due to incorrect usage from user. The claimant logged issues with the laptop, most of which were resolved. Any issues that were reported were responded to very quickly and a high level of support was maintained at this time.

16. The claimant requested that the laptop be upgraded from Windows 8 to Windows IO and it was found to be unsuitable for an upgrade. It was at this stage that other laptops were offered to the claimant. The laptops offered to the claimant at this time included: Lenovo Think book 15 IIL, HP Elite Book 830 G8 and a Lenovo Think Pad X 13 Gen 1. During the pandemic the DSP had trialled using the same Zoomtext Software with some of our higher end laptops in use and we found this to be an effective solution which offered a remote working solution for visually impaired staff. This was offered to the claimant as it was a tried and tested solution. The claimant did not accept this offered solution and requested a specific nongeneric type of laptop. The DSP, after taking advice from industry experts, advised the claimant that due to worldwide shortages of components that the procurement of this device could take a considerable amount of time. The DSP was advised that there were definitive lead times as to when this device type might become available. While the claimant was advised of this. The claimant stated that this was the device he required, and all other preferred devices were not suitable for him. The offer of an alternative laptop was repeated to the claimant multiple times on the basis that it would be used only until the new replacement arrived. These offers were ultimately refused.

17. The claimant initially accepted the offer of a temporary replacement laptop, however he subsequently decided not to accept this. The laptops offered are in use by visually impaired staff in the DSP. Any restrictions in screen size can be overcome by using a docking station and monitor. What was offered to the claimant was a device that could be used until a suitable replacement of his choosing could be found.

18. The new laptop was delivered in October 2022 and is currently in use by the claimant. The ATO has been in contact with the claimant on numerous occasions and the claimant each time stated that he is happy with the new device.

Mobile Phone.

19. In 2014, the ATO went with the claimant to NCBI to look at Apple iPhone and iPad devices. On foot of this joint visit, the claimant's current iPhone was upgraded to a newer version. An iPhone 6Plus was purchased for the claimant following the visit to NCBI to look at suitable models and solutions. The newer device was deemed more suitable as it had more enhanced assistive technology included. This was fully supported by the ATO at the time.

iPad.

20. The iPad request by the claimant was progressed by the DSP and granted on the basis that it would help alleviate some of the issues he faced. An iPad Pro Max 128gb was purchased for the claimant in March 2020. It was seen to have many good Assistive Technology features. The primary use was for it to be used as an alternative internet reading device and could be used also to scan and convert documents. There was no initial request for a backlit keyboard as the iPad has its own integrated keyboard. The keyboard that was supplied was part of an integrated case that came with it.

21. A separate backlit keyboard was requested and purchased in February 2021 and subsequently supplied to the claimant.

22. There was no request to install MS Word on the device when the iPad was initially requested. When the request to install MS Word was later made by the claimant, it was examined. When a technical and secure solution was in place, it was granted, and MS Word was installed in March 2022.

Desktop PC

23. PCs have been changed and upgraded to newer models at the claimant's request.

24. There were issues with the PC, which were resolved. Some of these issues were related to how the claimant wanted items set up in a particular way and not specifically faults. The newly appointed ATO had a high level of expertise in dealing with PC Desktops and also had some previous experience in Assistive Technology in a different organisation.

25. ISD are, and have been, fully committed to assisting all staff. In particular, any staff with Assistive Technology issues are treated as a higher priority. The claimant has been given dedicated one on one support and this assistance has often run beyond the normal working hours. There is a very high level of commitment by staff working in this area

Blended working/working remotely

26. The term blended working refers to a combination of working from DSP's work premises and working remotely, based on an agreement between the claimant and his manager, and approved through the application process.

27. The DSP published its Blended Work Policy in June 2022, following an agreed civil service framework for the civil service and following consultation with staff and managers of the DSP. While all colleagues in the DSP can apply for Blended Working. 100% remote working is not generally available to any staff member. Each manager will work with their staff to find a pattern that can work for them and the business need.

28. Arrangements may need to be changed to meet the business need, and any staff member may be called into the office at any time.

29. All the following criteria must be satisfied for any blended working arrangement to be approved, none of which may be excluded from consideration:

· Business Needs and Role Suitability

· Employee Suitability

· Designated Workstation Requirements

30. The position in the claimant's unit is that APs attend the office for a minimum of two days per week. In 2022, staff attended the office on one day per week during the period from September 2022 but towards the end of the year management agreed that from the start of the new period (from Feb 2023) the blended working pattern would change to two days with Monday as the "anchor day" where all staff attend the office and there is an in-person team meeting. The other day can be chosen by the AP in consultation with the person / people reporting to them so that they coordinate their attendance. The new position was communicated to the complainant in January 2023.

PMDS accessibility

31. The claimant has refused to undertake his 2021 PMDS despite accommodations being provided for him to do so. On foot of the claimant's permission for the DLO to liaise with his line manager, the DSP created an accessible format of the PMDS form in Microsoft Word which was sent 10/11/21. The claimant refused to complete this task as he felt ‘there was no value to undertaking the process late in the year and he would be taking direction from his union.' It is the DSP's policy that PMDS be completed annually. The PMDS system does not allow completion of 'end of year' if goal setting is not done first.

32. This accessible PMDS form was made available internally via Stor, the DSP's intranet. HR requested that that National Shared Services Officer (NSSO) be informed of the creation of the accessible version of the PMDS form, so this process could be replicated in other Departments in a consistent manner for people with disabilities, as an example of good practice across the Civil Service.

33. Once completed, the PMDS word version document can be returned to the DLO, who will inform the NSSO.

34. The DSP fail to see how this issue remains unresolved as we have not only created an easily accessible form for the DSPs staff, should they need to use it, but we have also informed NSSO so that PMDS can become more inclusive for all staff in the Civil Service. The claimant would have received satisfactory PMDS ratings at End of Year in 2020. There is no evidence that technology or the lack of it, has impeded his capacity to carry out his role

35. The claimant contends that the form is not accessible and is of low quality but the DSP is offering a reasonable alternative for the claimant to fully engage and comply with the performance management process in place for all staff and managers.

Alleged discrimination in relation to non-attendance at Joint Oireachtas Committee (March 2022)

36. The claimant states that: "I was discriminated against and victimised as a result of y disability by the decision not to invite me to the meeting with the Minister." The DSP rejects this as entirely untrue.

37. The Minister for Social Protection was invited to attend before the Joint Oireachtas Committee on Disability Matters at a meeting to be held on 24 March 2022. Responsibility for preparation of the brief was assigned by the Assistant Secretary General to the AP in the area with lead responsibility for the two main items for discussion at the Committee: the cost of disability report and carers policy.

38. The claimant was on leave from 28 February 2022 to 3 March 2022, during which time a considerable amount of the work on the brief was done. He prepared some material relevant to his work area for inclusion in the brief. This is standard AP work. The other two APs in the area were asked to provide similar input, as were a range of APs from other relevant areas of the DSP.

39. The decision on who was to attend the Oireachtas Committee with the Minister was a matter for the lead Assistant Secretary General, based on the Minister's needs and having regard to Oireachtas restrictions on attendee numbers. No departmental official has an automatic right to attend ministerial meetings. The Assistant Secretary General had requested the attendance at the Oireachtas Committee of the two lead Principal Officers in the area, and the lead AP who prepared the brief

40. As is normal, the Assistant Secretary did not request attendance by the wider team of people who had provided input to the brief, nor were they required to attend the preparatory meeting with the Minister. The claimant was not treated any differently to the other departmental officials who fed into the wider brief. The claimant queried the Assistant Secretary General's decision on this and was offered an opportunity to discuss it but declined to do so, stating in an email to the Assistant Secretary General on 22 March 2022:

"I understand I'm not to attend the briefing tomorrow,but that I can call you to discuss. As I don't think that's an appropriate way to operate, I think we should pass on a discussion.''

41. The claimant states that he worked on the brief on a Sunday. The whole team, including the Assistant Secretary General, worked that Sunday. The claimant was not treated differently to anyone else, and he was not specifically requested to work that day.

42. In terms of the claimant's description of his role, he did not "oversee the area." At AP level, responsibility for disability policy is split across four AP areas. The claimant has no oversight role in relation to the disability-related work performed in the section. That role rests with the Principal Officer.

43. In terms of the claimant's comments that he would have been concerned about being on a live broadcast, only the Minister was on screen. The officials who attended did not form part of the broadcast and were not on screen.

44. The claimant states that one of his duties was to attend the Oireachtas Committee meeting with the Minister. This is not correct. He had not been requested by the Assistant Secretary General to attend nor was it necessary for him to do so. It was the claimant himself who had requested to attend the Oireachtas Committee and his Principal Officer liaised with the Oireachtas Committee Clerk to ensure that any reasonable accommodation required for the claimant would be put in place. The claimant also spoke to the Oireachtas Clerk directly on this. On the morning of the Oireachtas Committee meeting, the claimant made contact to say that he had contracted Covid 19 and was unable to attend the meeting.

Transfer of duties (January 2023).

45. The claimant states that “the decision to move me was made as a result of my decision to refer a complaint to the WRC”. This is denied.

46. On or about 11 January 2023 the claimant was informed by his PO that the Assistant Secretary had decided to move his role to Families and Children Policy Unity, effective from 1 February 2023 as part of a wider rotation of the most experienced APs within the policy area.

47. The purpose of this rotation was to: provide broader experience for the APs concerned, which would deepen their professional experience and enhance their career development; allow for skills transfer across the policy units; enable experienced APs to share insights with less experienced colleagues; and encourage greater synergies on relevant policy issues. In the case of the claimant, the move builds on his experience in Disability Policy regarding stakeholder management, formulation of Budget measures, and addressing key policy issues such as low employment participation by a marginalised cohort with high poverty risks. Such changes happen at all grades to provide development opportunities for the staff member concerned and to enrich the range of experience within the wider team. Similar rotations have also recently taken place at Assistant Secretary General and Principal Officer levels.

48. The three APs rotated were:

• AP A-in situ since 27/01/17

· AP B- in situ since 11/04/18

• AP C-in situ since 11/11/18

49. The claimant was assigned to the area of Families and Children Policy Unit. This is a high profile area which has a lead role within DSP on child poverty issues. Child Poverty has been identified as a key priority by An Taoiseach. where a dedicated Child Poverty unit has been established within the Department of An Taoiseach, so this is a key area with a high profile for the DSP. This assignment will help the claimant to build on his policy and stakeholder management experience, while also providing him with opportunities for personal and professional development.

50. The claimant was provided with handover notes and background reading material and there have been introductory meetings with his PO and each other staff member in the unit.

51. In terms of training, the claimant was given the opportunity to be nominated for a London School of Economics programme on Public Policy Analysis (10 weeks part-time) but the dates did not suit him on that occasion. Since his move, the claimant has participated in a number of training courses and seminars such as One Learning's "Leading to Achieve Results", and Speech Writing and the ERSJ's Budget Perspectives 2024.

Mandatory Data Protection Training.

52. The Data Protection Training is now available in word format which has been identified following consultation with a number of testers from across the dsp, as being most suitable for use with assistive technology and/or magnification if required. The claimant was informed of such on the 24th June 2021. The assistance of colleagues in the DSP was sought with the testing and providing valuable feedback on this training. This process took some time however, resolving this issue required investigation of the issues being experienced and considerable time developing possible alternative formats and testing and identifying the best solution. We note that the claimant was asked if he would like to assist in the testing of this training and he refused to assist us in developing an accessible training format.

53. The DSP's learning incurred in this exercise will be incorporated into future training initiatives and the DSP will continue to liaise with One Learning on training accessibility issues. We confirmed with the union on 23 December 2021 that this situation had been rectified with the newly formatted PMDS form and therefore, are not sure where this complaint is arising from.

AP Forum

54. On 7 February 2022, the Staff Development Unit (SOU) issued a 'save the date'‘ for the2022 AP Forum which was then scheduled to take place in Dublin Castle on 4 and 5 April. This event was later rescheduled to take place on 22nd and 28th June. The claimant enquired on a number of occasions as to whether this forum could be held on-line. The DSP advised the claimant that the Management Board had decided to return to an in-person event format for the AP forum. This was in line with the Management Board's view that all staff forums would take place as in-person events to support the need for managers, staff and teams to reconnect face to face and back to a level of normality following the long hiatus due to the Covid Pandemic.

55. In response to a query that APs should have greater input to the AP forum, the claimant was advised that participants had been asked for their views on potential topics for breakout and that we had not received any feedback regarding the desire for virtual or blended delivery of the AP forum apart from the query raised by him.

56. SDU is aware that APs may not be in a position to attend the AP Management Forum in person due a variety of circumstances. The AP Forum is a significant date in the AP Management calendar and is seen as a major opportunity for networking. The Management Board made it clear that they want the AP Management Forum to be an in-person event. Accommodations are made for persons who require assistance-e.g. interpretative services etc.

57. AII invitations to staff to attend DSP training ask if they require any special accommodations. They are given an email address to contact so specific requirements can be catered to. One Leaming also ask the same question. Staff can select yes or no and then have a free text box to outline their requirements.

The allegation that HR declined a meeting on 25th March 2023.

58. The DLO was consulted on the matter of the meeting request and they were of the opinion that a meeting was not required at the time as it appeared that all the claimant’s accommodation issues lay in the ISD sphere. On foot of this, the AP in ISD was contacted and the claimant’s accommodations were discussed. It was explained that, as the claimant uses Zoomtext , he has been experiencing some of his ICT issues as a result of this software being very processor intensive.

59. The DSP confirmed they would continue to work with and provide reasonable accommodation to the claimant and any of its staff to assist them in carrying out their duties. This can be seen in the attached logs that identify the extensive supports received by the claimant from the IS Division. Furthermore, there has been extensive engagement between both our IR and HR units and the claimant's union representatives over the past 18 months in efforts to resolve his issues.

That the claimant was made to feel like a nuisance

60. The claimant states:

"Allthe 'negotiations', 'reminding', 'discussing' of 'Paul Hills issues' - have made me feel isolated, an inconvenience within the department, that I'm a trouble maker, that I'm unreasonable - all in my place of employment which has been terribly undermining and distressing. Ihaveheard various anecdotal reports from colleagues about how I am viewed e.g. "they hate hearing from you" "you'renot popular there' "they really love you there"

61. It is denied that the DSP treated the claimant as a nuisance in this or other ways. The claimant relies on secondary hearsay to make his point which is not permitted.

Time Limits.

62. The DSP relies on s.77.5 of the EEA. The claimant must show an act of discrimination within 6 months before bringing the claim which was on 30 January 2023. The claimant must show an act of discrimination after 31 July 2022. The claimant says the last act of discrimination was 331 January 2023. Many, if not all the individual and mutually exclusive complaints made by the claimant herein were resolved more than 6 months before bringing the claim.

63. The claimant cannot rely on an act of victimisation within 6 months before bringing the claim to bring earlier acts of discrimination into the reckoning. In this respect para. 14-05 of Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed states: -

"It is clear from the provisions of the Employment Equality Acts that victimisation is an independent cause of action akin to a statutory tort and is not a form of discrimination. The Equality Directives do not explicitly provide that victimisation is a form of discrimination, and this has caused different responses from the Member States.9 There is no reference to victimisation within the definition of discrimination in the Irish legalisation (with the exception ofs.85A and the burden of proof requirements), and indeed the provisions of the Employment Equality Acts frequently refer to "discrimination or victimisation", thereby clearly distinguishing between the two. [For example, see ss.77(6) and 79(1A)"

Legal Submissions.

64. The claimant has not shown that he was discriminated against because ha has a disability. The case mainly concerns the claim that reasonable accommodation was not provided.

65. The relevant parts of s.16 of the EEA include

"3((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.

(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, but

or reasonably provide for himself or herself;]

Applying this to the case, it is submitted as follows: -

• The claimant was not treated as anything other than fully competent to do the job allocated

• The claimant must show he was impeded in his access to employment, to participate or advance in employment and to undergo training. There is no evidence that this occurred.

• The claimant was afforded effective and practical measures to adapt the place of work to the claimant's disability.

66. It is further submitted that the obligation is on the DSP to provide reasonable accommodation. The obligation is not to provide the perfect accommodation or a flawless maximum effort for accommodation. Insofar as hardware and software provided was not perfect during some periods of employment, this is true of hardware and software provided to all employees who are provided with equipment, whether they have disability or not.

In this respect Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 states: -

The meaning of reasonable in reasonable accommodation

7-119

Whilst, at first glance, the term "reasonable" within the concept of reasonable accommodation could be seen as a filter to exclude excessively burdensome, costly, difficult or unreasonable actions required on the part of the employer, the reality is far more complex. This view of the duty imposed on employers is that "reasonable" weakens the term "accommodation" such that a less than maximum effort is required on the part of the employer. The approach of seeing the term "reasonable” as a filter to the duty of reasonable accommodation is very evident from the decision of the High Court in Cahill v Department of Education and Science [2010] IEHC 227 which was an appeal under the Equal Status Act 2000 concerning alleged disability discrimination and failure to provide reasonable accommodation in the context of the special annotations to the exam results certificate which were imposed on a dyslexic student who availed of a waiver on spelling and grammar in the assessment of her exams. De Valera J rejected the argument of the appellant that the failure to consider or provide an alternative to the annotations on the exam certificate constituted a failure to provide reasonable accommodation:

"The accommodation granted in this case was, in all the circumstances, a reasonable accommodation and it follows that an annotation to reflect that accommodation was also reasonable."

7-120

In a further clear statement that the accommodations sought by the appellant under the Equal Status Acts (being the non-annotation of her examination certificate) must be reasonable and not overly burdensome, de Valera J commented:

"It appears to me to be a question of balance and that the contention advanced on the part of the appellant invites the Court to embrace an unreasonable definition of 'reasonable accommodation’ which tips the balance too far in favour of the appellant to the detriment of other parties with a legitimate interest in the fair and equitable administration of the Leaving Certificate examination."

83. Further, the claimant did not invoke the grievance procedure in relation to the complaints made herein. In determining if the DSP acted reasonably, it is relevant that the claimant did not seek to resolve the issues complained of as part of the grievance policy.

Summary.

67. The claimant has been employed by the DSP since 2012 He has been provided with numerous disability related accommodations to assist him in his work. His performance has been documented as satisfactory during this period. The claimant has only now, in2023, decided to make a claim of discrimination related to his treatment by the DSP.

68. The DSP has engaged in ongoing meaningful engagement with the claimant and his AHCPS union representatives (initially, Mr. Billy Thompson and latterly, Mr Malone). The DSP has assisted the claimant sufficiently in providing reasonable accommodations.

69. The DSP has put the claimant’s best intentions to the fore. When the DSP received the initial complaint from the AHCPS, it was brought under the incorrect legislation. The DSP quickly notified the union of this error and by doing shown its willingness to engage and assist the claimant in resolving his issues as swiftly as possible.

70. DSP deny the claim that his reputation has been damaged and that he has suffered victimisation.

Second Submission of the Respondent.

Contract of Employment

1. The claimant has been employed by the DSP since the integration of Foras Aiseanna Saothair (FAS) with the Department on 1 January 2012.

2. The contract oof employment at Appendix 1 of the claimant's submission was superseded on the claimant's transfer to DSP from FAS in 2012. Consequently, the claimant now holds a position in the DSP as an official of the Minister.

The claimant’s previous position in FAS was a Grade 7 post. The claimant is paid, since his integration into the Department from FAS, at a rate of pay in accordance with the Civil Service General Grade AP pay scale, as agreed with the Unions. All increments, including long service increments, have been paid to the claimant in accordance with this pay scale.

3. The claimant has not applied for a promotion beyond Assistant Principal (AP), to the knowledge of the DSP. It is theoretical for the claimant to allege that his prospects for promotion have been affected when this is the case.

Reasonable Accommodation Policy

4. The DSP does not have a fixed reasonable accommodation policy. The risk of having a reasonable accommodation policy is that it may unduly limit the obligations under the Employment Equality Act. There are relevant policy documents in place relevant to reasonable accommodation including: -

i. Code of Practice for the Employment of People with a Disability in the Civil Service. The Code of Practice includes a Workplace Reasonable Accommodation form for persons with disability

ii. Blended working policy which provides for a home ergonomic assessment. The DSP uses a company Quadra Consulting to complete home ergonomic assessments.

These policies are applicable to all Government Departments.

The DSP rely on the recommendations of the Departments Disability Liaison Officer (DLO) in cases where an employee requires reasonable accommodation after declaring a disability. Where the DLO recommends an accommodation, Customer Services will seek to provide this either from existing stock or, if not in stock, going to the market to procure the item, whether it is hardware or software. Customer Services, the DSP rely on Health and Safety Unit in Facilities Management Unit to organise ergonomic assessments. Again, Customer Services will procure any items recommended by the ergonomic assessments.

For training, when someone indicates that they need extra support and directly gets in touch with the trainers, the DSP comply with their requests in as far as is possible. The DSP would usually talk to the attendee in advance of the training to find out exactly what they need. The DSP can issue training materials prior to attendance or organise a sign language interpreter. Initial induction training is delivered online over 2 days to all new staff. For other training in the classroom, the DSP accommodate their needs as requested - e.g., very often someone will ask to sit at the front of the room.

From a communications perspective, all material is made with an accessibility first approach. When designing publications internally or externally, basic rules on font size, line spacing, and colour contrast are used, and recent examples include the Statement of Strategy 2023-2026 and Annual Report. We also create accessible social media posts/ads for many of our public information campaigns, as well as providing formats for those with hearing, vision and intellectual impairments using ISL and alt text. All updates to gov.ie.dsp are made using readability tools and we regular audit our content to ensure it's as accessible as possible. We also have external accessibility auditors examining the content regularly. We regularly monitor feedback from internal and external stakeholders to continuously improve the accessibility of all of our content.

The Be Disability Aware eLearning Unit was developed and tested using the principles of the National Disability Authority's Universal Design approach to digital communication. A Toolkit was designed to facilitate self-managed learning on completion of the eLearning unit. The Department approached members of staff who had expressed interest in testing accessibility and reviewing the course content using screen readers with speech, and other accessibility tools. The feedback from all staff consulted was the basis for a review and update of the Be Disability Aware eLearning Unit and Toolkit. The Disability Consultative Forum, an external body of disability support organisations such as the Irish Wheelchair Association, Irish Deaf Society, CHIME (formerly National Association for Deaf), NCBI (National Council for the Blind of Ireland), NOA (National Disability Authority) and Headway (the brain injury support organisation), also expressed their interest in reviewing the Department's eLearning course. Very positive and constructive feedback was received from them on how to improve the content. All feedback was taken on board and incorporated into the final eLearning Unit and Toolkit. This was launched on 10/11/21 via the Department's internal website and on the Onelearning platform.

The DSP have begun the process of making sure all our eLearning is accessible to as many people as possible. This includes:

• adding audio narration (which can be turned on or off easily)

• modifying the focus order to ensure compatibility with screen-reader, such as JAWS

• ensuring our standards include font size, style and colours and contrast which are accessible

• always using plain English language, and adding explanations to text where it is not possible

• adding Alt Text to images

• ensuring all quiz questions are accessible

The DSP have also developed a presentation for colleagues in Learning and Development across the Department, BeAccessibility Aware with Learning and Development, which we have delivered several times already to staff in HR Learning and Development and other training colleagues around the country. This course is an introduction to the topic of creating accessible material and content for eLearning, in-classroom, virtual or face-to-face learning, and has been very well received by all.

Ergonomic assessment.

5. The claimant currently works in Aras Mhic Dhiarmada, this being the DSP Head Office, Store Street, Dublin 1. Paragraph 1 of the claimant’s submission refers to an open plan office layout being uncomfortable for the claimant. There is no question of the claimant having to work in an open plan office. When he is in attendance at the office, the claimant has access to, and works, in an individual office.

The claimant had a higher spec Personal Computer (PC) in his office which was his main device, the laptop which was purchased in 2014 was a backup to this device. The PC was removed at the claimant's behest on 12/10/22. ISO advised claimant that it would be better if the PC was left in situ to provide resilience, however the claimant insisted that it be removed.

6. The claimant has not complained in these proceedings that the ergonomic layout of his home office is desired or deficient, other than claiming that the IT equipment has been deficient.

7. This para. is in relation to the claim at para. 42 of the claimant’s submission that he requested an ergonomic assessment on 22/3/23. The claimant was responding at this time to an email inviting applications fora home ergonomic assessment, as part of the blended working policy. He was informed that he could make an appointment for that assessment in the period 5/4/23 to 25/4/23. The claimant did not make the request for what was a home ergonomic assessment.

NCBI Report.

8. The DSP commissioned the NCBI assessment on or about 5/4/23, referred to In para.9 of the complainant’s submission. The complainant was given relevant equipment following the NCBI report in particular:-

i. Black out blinds were ordered and fitted in June 2020

ii. A dimmer switch was installed

iii. Task lighting (a desk lamp)

The NCBI report was first sent to the DLO of the DSP on 22/5/23. At per para. 45 and Appendix 14 of the claimant's submission, the DLO emailed the claimant on 31/5/23 to the effect that ISO would need a medical report to get a 27 inch touchscreen and articulating arm. However, once the DLO disclosed that there was a report carried out by an Occupational Therapist on behalf of the NCBI then this was accepted by IS Services. The DSP emailed the claimant on 7/6/23 to consult with the claimant as to what precise version of equipment and assistive technology software he was using so that ICT could source a 27 inch touchscreen as suggested by the NCBI report. The claimant has not responded to this email as yet.

The NCBI assessment occurred after the claimant brought the claim herein. The claimant is premature in his argument that the recommendations have not been implemented.

In para. 39 and Appendix 11 of the claimant's submission it is stated that a change of office and an ergonomic assessment was requested in an email to both Ms. Noeline Higgins (the then DLO) and Mr. Liam Walsh (HR). Both these officers are no longer employed in the DSP and that this request was superseded by the NCBI report.

9. There is suitable equipment that may help the claimant which the claimant never made a request to ISO for. This equipment is generally available on request and has been given to other employees. Example of such equipment is:-

i. A laptop riser. The claimant would not need to prop his laptop up on reams of

printing paper.

ii. Articulating arm to change the angle and height of a monitor.

10.The claimant refers in his submission at para 18 to an email from the then Deputy Secretary General of the DSP that his treatment was 'terrible on a number of levels'. However, this scenario was back in October 2014 and the claimant has been furnished significant accommodations since then. Further, such a comment was made without assessment of all the relevant facts.

Transfer of Duties / Victimisation.

11. The claimant complains that in January 2023 he was moved within the DSP to One Parent Child Income Policy. We submit that the new post is of equal standing and provides no less opportunity for promotion. Further, it is normal that APs are moved around within a Department, and it is likely that the claimant will be moved from this section at some point, as other APs are. It should be noted that 2 other Assistant Principal Officers were rotated within the business area of the current

Assistant Secretary at the same time as the claimant.

The claimant's current role is not of a lesser standing than his previous role -- it is another policy role (at the same grade) within a different part of the same Assistant Secretary area. The unit may have less frequent interactions with the NGO sector, but the claimant has been involved in those, such as the Department's pre-Budget forum. However. interaction with the NGO sector is not the only aspect of the role and the claimant has, for example, been involved in important work such as the development of Budget proposals and associated costings.

The Department strongly rebuts the claim that the claimant's new role does not have the same progression opportunities as that of his previous role or that the move was to his detriment (paragraphs 82 and 83 refer). People who previously worked in the unit have been promoted in recent years, whether from HEO to AP or from AP to PO. It is not surprising, that the claimant can identify comparators who commenced employment the same year as him who have progressed to a higher grade as this is not unusual in any Government Department. The rate at which people progress through the grades is determined by a number of factors, including the number of times they apply for promotion. Whether or not someone is successful in a competition also depends on a range of factors - not just on one particular role. The claimant has been in his current role since February 2023, it is not clear how these nine months account for his not being at a higher grade as seems to be the suggestion at paragraph 82.

There is no suggestion that the claimant is not fully capable of carrying out his role. In his submission, the claimant states that he has been required to work late into

the evenings and also at weekends "due to ongoing accommodation issues, including IT issues" (paragraphs 34 and 54 refer). It is the Department's position, that the claimant has not been required or expected to work late during the week or to work at weekends.

12. Daly v Nano Nagle can be distinguished. That is a case where the claimant was dismissed. The decision of the Supreme Court is that the Employer did not apply the correct test in assessing if the claimant was capable of doing the job or would be capable with the provision of reasonable accommodation.

The claimant herein has not been dismissed nor has not been criticised on his performance or disciplined. It is denied that the claimant has undergone insufficient training because of the failure to provide reasonable accommodation such that would hamper his prospects of promotion.

Third submission of the Respondent.

Introduction

A. The case was for the second day of hearing before the WRC on 1/2/24. On 1/2/24, the Adjudicating Officer, suggested that a resolution of the type referred to in para. 6 of the statement of Paul Hill should be tried before further evidence was heard. Both parties were agreeable to this.

The hearing is next listed for hearing on 3/7/24.

B. A Reasonable Accommodation Working Group (the Working Group) was set up chaired by Ronan Hession after 1/2/24. There were 15 persons in the group including:

- The Claimant

- A Trade Union representative

- 2 representatives of Vision Ireland

- Various employees of DSP

- Margaret Molloy Disability Liaison Officer (DLO)

There were meetings on various dates in person which the claimant attended, including on 20/2/24, 26/2/24, and 04/4/24.

C. We attach a summary of actions taken by the Working Group (the numbering correspondence with the table at DSP9):

1. 2 types of Handheld Digital Magnifiers were procured and provided.

2. RG Bluetooth headsets were procured and provided.

3. Zoomtext 2024 was procured and installed on the claimant’s current laptop and on the new 16” laptop that was procured and offered to the claimant. See point 4.

4. The DSP bought a 16” laptop meeting the Vision Ireland requirements. After this, the claimant wanted a 16” Lenovo Yoga instead. The DSP can only get 14” Lenovo Yoga through its procurement channels. The DSP needs to go through its procurement channels for this purchase to get after sales support. The claimant wants a 16” foldable laptop which does not seem possible in the circumstances.

5. 4 touchscreen monitors were procured and 2 were installed on the claimant’s office desk. There is an outstanding issue with linking the second monitor. The claimant has been made aware that Zoomtext software does not support the touch screen access with more than one monitor. Touch functionality will work on both screens when Zoomtext is turned off. The claimant has been offered a session with “Sight & Sound” but has not taken the offer up yet.

6. The DSP would need the dimensions of the claimant’s home desk before monitor arms could be ordered or installed for the home desk.

7. An office has been chosen for the claimant in Gandon House with the approval of the claimant. Blackout blinds were installed. Suitable lights were installed with the approval from OT.

8. Action point listed in error.

9. A new Learning and Disability Accessibility Policy has been drafted and put in place. It will require inter alia that third part suppliers of courses comply with accessibility principles.

10. The DSP has found and implemented a way to supply press clippings in accessible form to persons such as the claimant.

11. Templates for internal communications were amended to be accessible. Staff were advised to adopt accessibility principles for such documents.

12. The DSP has improved the accessibility of documents uploaded onto the Freedom of Information and Public Correspondence on STOR.

The changes and work is complete, save where otherwise specified.

See DSP9

The laptop

1. The sequence of laptops provided to the claimant since 2015 (excluding the iPad) was:-

a. From 5/15 Lenovo Yoga 360

b. From 11/22 Lenovo Yoga S1 GT 14 inch. The claimant has been using this but says he wants a bigger screen.

c. From 3/24 Lenovo ThinkPad (touchscreen) PI6S. The claimant did not want this as it is not foldable.

2. After the last day of hearing before the WRC on 3/7/24, the DSP went directly to three of the main Manufacturers of laptops (Dell, Lenovo and HP) and two resellers to find a laptop that meets all the DSP's requirements, the claimant's requirements and Vision Ireland recommendations. The DSP sent a list of the requirements and asked for any business or consumer devices to be suggested that met these criteria.

No laptop, including the Lenovo Yoga 16 inch suggested by the claimant, met all criteria. The Lenovo Yoga 16 inch is materially different from the laptop at b. above - it is a consumer laptop rather than a business laptop, with materially lesser functionality.

The criteria included:-

1. It must run on a stable image platform which would allow the DSP to upload their image allowing remote access to the Department network

11. It must allow enable BitLocker (encryption) which is a basic security

requirement of any DSP laptop.

iii. Foldable, bigger than 14”, with an anti-reflective finish. Multiple manufacturers have outlined toughened glass is used on any device larger than

14" and cannot be swapped out for non-reflective glass.

The laptops which the claimant has so far suggested, including those suggested in email

16/6/24, do not meet all these criteria. On 18/9/24, Rhona Grant AP IDS informed the claimant of this detail and the outcome. The DSP will continue to monitor the market.

3. By email 28/8/24, Rhona Grant offered 2 options as a solution, although they did not meet all

the claimant's requirements: -

1. ThinkPad X12-in-1 Gen 9 14" which is available with an 'anti-reflection'‘ finish(this is not 16" or greater) or

11. Standard Lenovo ThinkPad P16s 16" (this is not foldable)

The claimant rejected these in an email 2/9/24 as not meeting his requirements. The claimant has not proposed another suitable laptop.

Ergonomic assessment(s)

4. The claimant claims that he requested an ergonomic assessment which did not occur. The DSP made best efforts to complete and implement a home ergonomic assessment. The sequence is as follows:-

1. We refer to RS2 para. 7

1. On 7/2/23, the claimant completed an online self-assessment which recommended a special one to one ergonomic assessment of the home. The claimant was given the opportunity to make an appointment for the period 5/4/23 to 25/4/23 but failed to make that appointment

iii. On 11/12/23, the claimant completed a specialty assessment of his remote work station, which assessment was done by video link remotely. Recommendations were made for a new monitor riser and keyboard. These were provided to the complainant for his home.

5. Separately, on 10/09/2024, there was an ergonomic assessment of the complainant’s new Gandon House office by Medmark and recommendations were implemented. Further , there was work previous to the Medmark report that was equivalent to, and in the nature of, a standard ergonomic assessment on the office requirements in the following ways: -

i. The NCBI report 06/04/2023

ii. The Working Group set up after 01/02/2024 with the aim inter alia of making the complainant’s Gandon House office suitable for him which had the input of the NCBI/Vision Ireland.

The transfer to a different section.

6. On 11/01/2023 the complainant was transferred from AP Illness Disability and Cares Policy Division to AP Families and Children Policy Unit (the new section). The complainant gave oral evidence that the change was unusual or not required because Veronica O’Brien PO was due to cease working in the previous section and the person who replaced the complainant at AP in the previous section was due to retire.

About this time, Veronica O’Brien PO was moved as PO in the previous section and was replaced by Dr Sarah Waters, who was suitable and qualified for the substantive position. The Complainant was replaced in the previous section by Des Stone AP in the whole was suitable and qualified for the position. Des Stone did not email his retirement application until 12/02/2024, after his transfer in February 2023, and did not retire until 19th April 2024.

Complaints about the PMDS form 2023.

7. First submission para 31 – 35.

8. The PMDS form has been provided to the complainant in two different formats: -

i. Electronic format (ePMDS). The format was designed by DPER. It is accepted that it is not in an ideal format for the complainant because there is difficulty getting the drop down menus therein translated to speech.

ii. Word document. It is accepted that there is difficulty getting the drop down menus translated to speech.

“Sight and Sound Technology” and their accessibility partner InterAccess.ie are currently evaluating the PMDS form with a view to providing a better solution for those with visual impairments such as the complainant.

9. The complainant has received a rating of at least “satisfactory” in all his PMDS Annual reviews since 2015 – 2020 and again recently for 2023. Insofar as he could not include all information he wanted to in his PMDS, it has not impacted on the complainant in a material way.

Other.

10. Insofar as the complainant requested an office move on 27/04/2020, this was not considered or explored at the time because the complainant worked from home until January 2022, due to Covid 19.

Findings and Conclusions:

The legal protection against discrimination in the workplace has expanded greatly over the years.

In terms of the EU framework three Directives deal with employment equality. They are: -

Directive 2000/43/EC - The Race Directive, which prohibits all forms of discrimination based on race or ethnic origin.

Directive 2000/78/EC - The Framework Directive, which lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age and sexual orientation as regards employment and occupation.

Directive 2006/54/EC – The Recast Directive, which contains provisions to implement the principle of equal treatment as between men and women, in relation to access to employment, including promotions, vocational training, working conditions and pay. This Directive replaced two earlier Directives; 75/117/EEC and 76/207/EEC, which dealt separately with discrimination in pay and discriminatory treatment.

These Directives have been given effect in Irish law.

Employment Equality Acts 1998 – 2021.

The law governing employment equality in Ireland is contained in the Employment Equality Acts 1998 – 2021. The Act was originally enacted in 1998 and has been amended on a number of occasions, mainly to incorporate changes in European Equality Directives.

The instant complaint is almost entirely about Reasonable Accommodation /Disability.

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

I. to have access to employment,

II. to participate or advance in employment, or

III. to undergo training

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

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

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

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

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

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

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

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

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

In relation to the provision of reasonable accommodation in the instant case the representative for the complainant has, via submission, stated the following:

Reasonable Accommodation

19. In Daly v Nano Nagle [2019] 30 ELR 221 the Supreme Court Held as follows:

20. In the current circumstances, there was ‘no consultation or other necessary steps for compliance’ taken by the Respondent. Rather, lights were installed in his office without consultation, the Complainant was requested to accept the ‘standard’ laptop. In addition, no ergonomic assessment was undertaken by the Respondent to identify the Complainant’s needs and indeed the assessment undertaken by the NCBI was at the Complainant’s request.

21. Any efforts made to consult on the necessary reasonable accommodation were made by the Complainant and subsequently ignored by the Respondent. Indeed, a meeting requested by the Complainant’s union representative and the Respondent in March 2022 was refused. Had the Respondent engaged with the Complainant it is submitted that many of the issues could have likely been resolved as they are not financially onerous.

22. It is submitted that the Respondent have not complied with their own Code of Practice for the Employment of People with a Disability in the Civil Service, the relevant section of which provides:

“198. The following principles apply in relation to the working environment of employees with disabilities in the Civil Service.

201. All buildings occupied by employees with disabilities should comply with the most up-to-date relevant building regulations in respect of access, egress and utilization of buildings.”

23. The Respondent may seek to claim that they have provided what is required of them in terms of reasonable accommodation with regard to section 16(3). In that regard, the financial costs involved to carry out the modifications contained in the NCBI report are relatively modest, yet they have not been carried out adequately or at all. The financial resources of the employer, being a state department, are considerable, and certainly should stretch to the relatively modest modifications required in this instance.

I find it very difficult to disagree with the complainant’s representative on this subject.

I also note the memo written by Ms Anne Vaughan, Deputy Secretary General. The following is copied form the complainant’s submission:

18. In 2014 the then Deputy Secretary General, Anne Vaughn, who was the second most senior civil servant in the Department, noted that the treatment of the Complainant was “terrible on a number of levels” and indicated that improved process needed to be implemented. To date the Complainant is still experiencing significant accommodation issues. The email is set out hereto:

“From: Anne Vaughan

Sent: 29 October 2014 12:29

To: Brendan Friel; Tim Duggan; John McKeon

Subject: RE: Paul Hill - Disability Access - PC and laptop issues -

Folks

Noted ……this is just terrible on a number of levels.

Tim / John ……any views on what we should put in place & where & how. Noeleen Higgins in SDU is the Disability Liaison person. Might have a word with Patricia Murphy & get her views.

There are a few things

1/ attitude generally with DSP & how we best accommodate people with disabilities.

With 7,000 staff we must have a variety of different scenarios.

2/ particular technical requirements & the solutions required. (There was an issue

before that came all the way to SG as it was raised at (then) Partnership)

Let me know what ye suggest

Thanks

Anne”

I believe our focus on that email should rest on the description of “just terrible” (my emphasis added).

At the hearing on 1st February 2024 a suggestion was made that the hearing be temporarily adjourned to allow the parties time to form a project group that would look at the problems being experienced by the complainant and make an attempt to find solutions to those problems.

This Reasonable Accommodation Working Group was set up and chaired by Mr Ronan Hession. Membership of the Group consisted of:-

· The Complainant.

· A trade union representative

· 2 representatives from Vision Ireland

· Various employees of DSP

· Disability Liaison Officer

The Group met on various dates in person which the complainant attended, including on 20/02/24, 26/02/24, 20/03/24 and 04/04/24. The following is a list of what this Group achieved:

1. 2 types of Handheld Digital Magnifiers were procured and provided.

2. RG Bluetooth headsets were procured and provided.

3. Zoomtext 2024 was procured and installed on the claimant’s current laptop and on the new 16” laptop that was procured and offered to the claimant. See point 4.

6. The DSP would need the dimensions of the claimant’s home desk before monitor arms could be ordered or installed for the home desk.

7. An office has been chosen for the claimant in Gandon House with the approval of the claimant. Blackout blinds were installed. Suitable lights were installed with the approval from OT.

8. Action point listed in error.

9. A new Learning and Disability Accessibility Policy has been drafted and put in place. It will require inter alia that third part suppliers of courses comply with accessibility principles.

10. The DSP has found and implemented a way to supply press clippings in accessible form to persons such as the claimant.

11. Templates for internal communications were amended to be accessible. Staff were advised to adopt accessibility principles for such documents.

12. The DSP has improved the accessibility of documents uploaded onto the Freedom of Information and Public Correspondence on STOR.

The changes and work are complete, save where otherwise specified. To achieve the work outlined there was expenditure of approximately €20k.

At the final hearing of the complaint in January 2025 it was accepted by all that the situation was improving and the hope was that it would continue to improve.

Findings.

I now find that the from circa 2012 until 2024 the complainant was not provided with reasonable accommodation and that this constitutes discrimination on the part of the Respondent.

I now order the Respondent to pay compensation to the Complainant in the sum of €30,000, such sum should be paid within 42 days from the date of this decision.

Decision:

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.

I now find that the from circa 2012 until 2024 the complainant was not provided with reasonable accommodation and that this constitutes discrimination on the part of the Respondent.

I now order the Respondent to pay compensation to the Complainant in the sum of €30,000, such sum should be paid within 42 days from the date of this decision.

Dated: 08-04-26

Workplace Relations Commission Adjudication Officer: Jim Dolan

Key Words:

Employment Equality Act, 1998; Reasonable Accommodation.