Complainant

Respondent

Parties

Lukasz Swiercz

Lidl Ireland GmbH

Representatives

Krystian Boino, Boino Solicitors.

Killian O'Reilly, Fieldfisher Ireland LLP, instructing Roland Rowan BL.

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-00072479-001

16/06/2025

The Complainant has worked for the Respondent as a Warehouse Operative in Newbridge, since 11 October 2013. The Complainant holds a 30-hour contract, earning €17.40 per hour, plus overtime. The Complainant outlined that he suffered from a hernia between January and September 2025. He alleges that the Respondent discriminated against him on the grounds of his disability in his conditions of employment and in failing to provide him with reasonable accommodation for his disability.

The Respondent is a leading discount retailer in the Irish grocery market, employing over 7,500 staff across 190 sites on the island of Ireland. The Respondent employs over 900 Warehouse Operatives, of which over 250 are based in Newbridge. The Respondent denies the allegations in full.

The Complainant provided detailed written and oral submissions.

The Complainant submitted that the Respondent discriminated against him on the basis of his disability by: requiring a “100% fully fit cert” before permitting him to return to work; threatening him with disciplinary action for failing to provide sick certificates despite him already having submitted a GP certificate confirming he was fit to attend work; failing to address his complaints regarding the refusal to permit him to work; unreasonably delaying the process relating to his return-to-work; unreasonably delaying the process of referring him to the Occupational Health Physician (the “OHP”); unreasonably delaying his request for clarification of the OHP report; and failing to follow reasonable procedures to fulfil an employer’s duty to provide reasonable accommodation.

The Complainant submitted that over the six-month period while he was out of work, he was not in receipt of any income or social welfare support, as he had been certified as fit to attend work. In the circumstances, he suffered financial loss amounting to six months’ pay.

The Complainant relied on the cases of: Nano Nagle School v. Marie Daly [2019] IESC 63; Portroe Stevedores v. Nevins & Others, EDA051; A Health and Fitness Club v. A Worker, EED037; and Moloney Limited t/a Squire Maguires v. Mr. Thomas Keogh, EDA 1617.

As regards the Complainant’s supplemental submissions, the Complainant submitted, inter alia, that the case of Cunningham v. Irish Prison Service [2020] IEHC 282 was largely comparable to his situation. The Complainant relied in particular on paragraphs 69 and 79 of the judgment, submitting that the Respondent is a large organisation with many available roles and that limited modification of the Complainant’s role / relocation to another role could have been implemented to accommodate him. As regards the case of HR Rail C-485/20, CJEU (Third Chamber), 10 February 2022, the Complainant submitted, inter alia, that the reference to a desk‑based role by his GP was merely illustrative, and that once the OHP’s guidance regarding the Complainant’s limitations was applied, the Complainant was permitted to return to work.

The Complainant – Oral Evidence:

The Complainant outlined that he has worked as a Warehouse Operative for the Respondent since 2013. He is based in a warehouse in Newbridge.

On 29 January 2025, the Complainant felt unwell and went home early from work. He subsequently attended a doctor who referred him to hospital. He received a sick certificate for two days. In February 2025, the Complainant took preplanned leave. On 10 March 2025, the Complainant obtained a medical certificate from his GP who assessed him as fit to attend work, “but light duties only, no heavy lifting”. The Complainant sent the medical certificate to HR “straight away”. When the Complainant attended work the following day, he was told to give the medical certificate to a Manager, which the Complainant duly did. The Manager took a copy of the medical certificate and sent the Complainant home, telling him to provide a certificate when he was fully fit to attend work. The Complainant was not permitted to return to work.

On 25 March 2025, the Complainant emailed HR, explaining that he was waiting for an appointment to see the OHP and stating that he had been fit to attend work since 10 March 2025. HR informed the Complainant that no referral had been made to the OHP. The Complainant then sought his Line Manager’s email address and emailed him.

On or around 26 March 2025, Mr. Phillip Byrne, the Logistics Manager, called the Complainant. Mr. Byrne told the Complainant that he had seen his GP certificate and that there was no available position for the Complainant. The Complainant stated by way of response that he could work on bread or on “bulk” products. The Complainant stated that “bulk” products do not require lifting as the products are on pallets. He stated that bread is stored in a basket, making it “quick and easy” to put on a pallet.

On 3 April 2025, the Complainant sent a follow-up email to the Respondent. On 17 April 2025, he received a letter from the Respondent in which he was told, inter alia, that he had failed to follow the “correct absence procedure” and indicating that he may be subject to disciplinary action. On 18 April 2025, the Complainant emailed the Respondent, referring to the letter and stating that he was fit to attend work.

On 30 May 2025 and on 4 June 2025, the Complainant emailed HR. On 2 July 2025, the Complainant’s solicitor wrote to the Respondent. On 17 July 2025, the Complainant met with the OHP and subsequently received the OHP’s report of the same date. On 8 and 25 August 2025, the Complainant’s solicitor and the Complainant respectively, contacted the Respondent to seek information regarding the Complainant’s return-to-work.

On 29 August 2025, the Complainant received a letter from the Respondent by email which referred to the OHP Report but provided no specific information regarding the Complainant’s return-to-work. The letter informed the Complainant that the requested accommodation of “light duties” was “too restrictive from a health and safety perspective given the nature of warehouse operations and the requirements of the Warehouse Operative role”. The letter further indicated that the OHP had advised that the Complainant could return to work on a “phased return basis”.

On 29 August 2025, the Complainant emailed HR, referring to the Respondent’s letter of the same date and providing a chronology of events by way of clarification.

On or around 30 August 2025, the Complainant outlined that he was contacted by his new Manager and they discussed his return-to-work. He was permitted to return to work on 15 September 2025. For the first two weeks he lifted only lighter items. He stated that this involved lifting products, such as meats, which were on the same line and of the same shape, onto pallets. He stated that these items are easy to lift. After two weeks, he returned to his usual duties, lifting heavier products such as milk and butter. The Complainant stated that he always checks the weight of boxes. He also uses plastic pallets as they are lighter than wooden pallets. He follows the manual handling guidance. The Complainant stated that if an item is too heavy, he asks a colleague to help him.

The Complainant stated that his “pick rate” per hour was between 220 and 240. He does not know what his current “pick rate” is.

The Complainant referred to his Job Description. He stated that the tasks outlined therein as “quality control of electronic products” and the “control and processing of stock levels” involve reporting, and do not require heavy lifting. The Complainant outlined that he could also have worked with lighter products such as flowers, bread and “bulk” products. Finally, the Complainant referred to the “checker” position in the “Good-In” Department. He stated that he could also carry out “quality control” of the pallets which would involve checking the content of pallets which had come from different companies, against the relevant paperwork.

The Complainant outlined that during the six-month period when he was not permitted to work, he received no income. He stated that the Respondent refused to complete “lay -off” paperwork for him. He stated that he also could not receive social welfare, as he was considered fit to attend work. He stated that his hernia was not “bad enough” to keep him at home.

Cross-Examination:

The Complainant stated that he obtained a medical certificate from a first response doctor, “Doctor365” on 29 January 2025 who referred him to hospital. The Complainant stated that he attended this doctor as he did not want to wait one week to see his usual doctor. The Complainant stated that the medical certificate dated 10 March 2025 was from his usual doctor.

The Complainant stated that he previously had a number of injuries over the years, including a back injury in 2016. He stated that he attended a physio. He stated that he also attended the OHP then and was advised to work in line with manual handling rules; to avoid rushing; and to rotate his work. The Complainant stated that he was absent from work due to a back injury in 2020. He stated that there were further restrictions on his work by the OHP and that he was off work for periods of time. The Complainant stated that he was told in 2020 that he had to be fully fit to return to work.

The Complainant denied that the Respondent applied its policy consistently over the years. The Complainant stated that he had a different injury in 2025. 

The Complainant stated that his GP told him that it was for the company doctor to assess what he could do. He said that his GP was unwilling to comment on his role or to provide an updated certificate.

The Complainant stated that he did not answer Mr. Byrne’s telephone calls as he wanted to communicate with him via email as it is “easier”.

The Complainant stated that the “bulk” products are on a full pallet and involve little lifting, except for eggs. He stated that pallets are driven around, using machinery called a “track”. He stated that he is located in the “chiller” section where there are pallets and where the track is also used. He agreed that a pallet can be split. He also stated that he can decide for himself what items are heavy.

The Complainant agreed that the Respondent took steps to get him back to work, but that it required clarification from the OHP.

The Complainant accepted that there could be delays in making an appointment to see the OHP, but he stated that four months was too long.

The Complainant accepted that if an employee is absent from work, there is a greater burden on other employees and that there is a risk that stock may not be transported. The Complainant accepted that this has an impact on the business.

The Complainant did not accept that no “lighter” duties were available. He said that he had given a lot of evidence regarding “lighter” duties which were available.

The Respondent provided detailed written and oral submissions.

The Respondent submitted that the Complainant has a history of back injury and associated absence. The Respondent submitted that on or about 10 March 2025, the Complainant advised that he had a note from his GP stating that he was only fit for desk-based work due to a hernia. The Complainant was informed that given the nature of the warehouse operations and the nature of his Warehouse Operative role, the Respondent could not facilitate “light duties” in the warehouse. The Respondent submitted that this has been “a consistent position for a number of years and has been repeatedly advised to the Complainant by reference to, inter alia, various Occupational Health reports.” The Respondent submitted that there are no desk duties available in the warehouse. The Respondent submitted that the Complainant failed to provide more detail concerning “light duties”, when asked. Finally, the Respondent further submitted that the Complainant failed to provide any medical documentation to support his request.

The Respondent submitted that Complainant’s complaint is premised upon an impermissible complaint that he should have been facilitated in a role that does not exist. The Respondent relied on Nano Nagle v. Daly [2019] IESC 63, where the Supreme Court found that the provision of a reasonable accommodation is a factual question of “reasonableness and proportionality”. The Respondent further relied on cases such as HSE v. Hannigan EDA 2013 and A Customer Care Advisor v. An Insurance Company ADJ-00016629, 7 May 2020, which hold that there is no obligation on an employer to allow the removal of core duties which would in essence create a new role for an employee. The Respondent further submitted that, pursuant to Darguzis v. Lough Corrib Engineering Limited DEC-E2009-038, an employee “must demonstrate a ‘difference in treatment’ and not simply treatment of a manner which is less than ideal”, in order to establish discrimination.

As regard the Respondent’s supplemental submissions, the Respondent submitted that there was no evidence from the Complainant’s GP that the desk-based role reference was merely illustrative; and that the Complainant failed to clarify this position by way of a further updated medical certificate. The Respondent submitted that it had engaged with the Complainant to tell him that no desk duties were available. The Respondent further submitted that the Complainant was incorrect in suggesting that a reasonable accommodation was ultimately provided following an unjustifiable delay. The Respondent submitted that the Complainant returned to the same role in September 2025 that he held prior to going on sick leave. Finally, the Respondent submitted that the Complainant failed to provide any details to support his allegation that he was treated less favourably on the grounds of disability.

The Respondent relied, inter alia, on paragraphs 72 and 73 of Cunningham v. Irish Prison Service [2020] IEHC 282, where the Supreme Court held that an employer is not required to create a job for an employee or provide measures which are unduly burdensome. The Respondent further referred to its health and safety obligations under s.8 of the Health, Safety and Welfare at Work Act, 2005. The Respondent also distinguished Cunningham v. Irish Prison Service [2020] IEHC 282 and HR Rail C-485/20, CJEU (Third Chamber), 10 February 2022 from the present set of facts, in that both of those cases concerned persons with long-term “impairments”. The Respondent further submitted, inter alia, that: “the question of reasonable accommodation and disproportionate burden must be considered in the context of the period in which the alleged disability occurred and the fact that alternative roles were considered to prevent a necessity to lift”.

Mr. Phillip Byrne – Oral Evidence:

Mr. Byrne outlined that he has worked for the Respondent for six years. He is a Logistics Manager and while he was formerly in the “Selections” Department, he is now in the “Goods-In” Department.

Mr. Byrne outlined that the Complainant gave his medical certificate to the Deputy Logistics Manager, who passed the same onto him. He stated that the certificate was then passed onto HR. He said that he also contacted the Complainant about his return-to-work, at the end of March 2025.

Mr. Byrne outlined that in the “Selections” Department, there is a team of 70 “pickers”, who pick and pack store orders for 60 plus stores. He said that it is a very physical job with daily targets. He said the job involves moving, bending and lifting boxes of different weights. He stated that each person has a different “pick rate” which is around 220 “picks”. He stated that when one order is completed, the “pickers” move onto a different product and / or section.

Mr. Byrne stated that when the Complainant sought to discuss “lighter duties”, his concern was that he could not guarantee the Complainant’s safety as he could not guarantee what the Complainant would pick. He stated that the job of a “picker” has changed in recent years insofar as a “picker” no longer picks full pallets and items are now picked individually. He said that alcohol, fire logs and eggs are picked for every store, seven days per week. He stated that flowers and plants are only picked four days per week and may contain heavier items such as flowerpots.

Mr. Byrne stated that as regards alternative options, the “Goods-In” Department has a smaller team with more specialised roles. He said that “checkers” also drive bigger machinery which can carry more pallets and which can move pallets up into the racking. There are also a certain number of desk clerks. At the time of the Complainant’s hernia injury, there were two full-time desk clerks, who worked seven days per week. He stated that there were no other vacancies. He stated that the Respondent has “bespoke computer systems” for which the desk clerks require training over the course of a few months. He stated that the desk clerk role is a sought-after role, with a greater salary and which is advertised. He stated that it is often used as a “stepping stone” for Warehouse Operatives to move within the business.

Mr. Byrne stated that in the “Goods-Out” Department, it is mostly plastic pallets which are brought to the top of the aisles. He stated that the pallets are moved by a truck to different areas. He stated that everyone is trained in how to use the truck which can store two to three pallets. He stated that one cannot do this job all day.

Mr. Byrne stated that he knew “from [his] experience” of five years plus in the “Selections” Department, that the Complainant could not be accommodated as regards the performance of “light duties” only. He stated that he could not take the risk of the Complainant injuring himself and also exposing his fellow employees to risk, who would have to take on the rest of the Complainant’s duties. He stated that in his entire time working for the Respondent, no one has ever been facilitated with “lighter duties”. He stated that “the position is that we do not facilitate lighter duties.” He stated that a “picker” is constantly moving and bending and that they could cause further damage to themselves and aggravate an injury.

Mr. Byrne stated that the Complainant was previously accommodated on a “phased return”, following the receipt of an OHP’s report and when the matter was explored with HR.

Mr. Byrne stated that he spoke with the Complainant in late March 2025 and that he wrote to him again on 17 April 2025. He stated that there was “one more phone call before July”. He wrote to the Complainant on 8 July 2025 about his absence from work. He said that the Complainant said that he would contact his GP. He said that he heard nothing further from the Complainant.

Mr. Byrne stated that he could not recall the Complainant asking for a desk-based role, and that the Complainant’s request always centred around the lifting of bread or “bulk” products. 

Mr. Byrne stated that it is the Respondent’s “policy”, albeit not in writing and a “figure of speech”, that no one in the “Selections” Department gets “lighter duties”.

Mr. Byrne also stated that if an employee is pregnant, a risk assessment is carried out to see if anything is available.

Cross-Examination:

Mr. Byrne confirmed that the Complainant first told him about his condition in early March 2025.

Mr. Byrne stated that he could not guarantee the Complainant’s safety. He said that every area has different weights and box sizes. He stated that the Operative’s role must be flexible. He stated that he took the doctor’s advice. He stated that the company doctor is familiar with the different weights and roles.

When Mr. Byrne was asked if he was aware of the need for reasonable accommodation, he stated that it “is never something that has been accepted or accommodated for”. He said that a “picker” needs to work across multiple areas and that it is not something that can be supported.

Mr. Byrne stated that he did not know when the Complainant was referred to the OHP. He said that it takes time to get an appointment. Mr. Byrne confirmed that there was no mention of the OHP in his letter to the Complainant dated 8 July 2025. He stated that during the review meeting with the Complainant, he discussed meeting the OHP.

Mr. Byrne confirmed that when employees are in training for the desk clerk roles, they are still working and earning a wage. Mr. Byrne said that there were no desk clerk vacancies in March 2025, which are skilled positions.

Mr. Byrne stated that the only medical certificate which the Complainant provided concerned working “lighter duties”. He also said that he was not involved in this matter from July 2025 onwards.

Mr. Byrne stated that he did not know whether the Complainant would have returned to work sooner if he had been referred to the OHP sooner.

Mr. Byrne confirmed that it is Respondent’s practice that employees may be moved to different tasks during the day, for example, they can be moved to pull pallets or to clean up spillages.

Ms. Linda Cahill – Oral Evidence:

Ms. Cahill outlined that she was in the “Selections” Department from early August 2025 onwards. She stated that she engaged with the Complainant after he called her, seeking an update.

Ms. Cahill said that she liaised with other departments such as the Health and Safety Department. She said that she had no documentation concerning this.

Ms. Cahill said that when she spoke with the Complainant about his return-to-work, he stated that his condition had improved and that he could return on full duties and that a phased return was not necessary.

Ms. Cahill stated that the Complainant had a return-to-work meeting on 11 September 2025. The Complainant completed a standard form and “signed off” on a manual handling “refresher”. He returned to work on 15 September 2025.

Cross-Examination:

Ms. Cahill did not know how long it takes to prepare a risk assessment for warehouse employees who require them. She stated that for store employees, it takes four to six weeks for an in-house assessment and that during this time, the employees are working and earning a salary.

Ms. Cahill did not know when the Complainant’s OHP meeting was scheduled.

The Law:

Legislation: Employment Equality Act 1998-2015, as amended (the “EEA”):

Discrimination:

Sections 6 and 8 prohibit employers from discriminating against employees on the basis of disability. The most relevant parts are:

“6(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—(i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,

[…]

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

[…]

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

8. (1) In relation to—(a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts, an employer shall not discriminate against an employee […].”

Reasonable Accommodation:

Section 16 of the EEA addresses the extent of the obligation of an employer to provide reasonable accommodation. The most relevant parts of section 16 are:

“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.”

Section 16(3) outlines the obligation to provide appropriate measures for an employee:

“(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.

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

(i) the financial and other costs entailed, (ii) the scale and financial resources of the employer’s business, and (iii) the possibility of obtaining public funding or other assistance.”

Section 16(4) addresses what are appropriate measures.

“In subsection (3)—

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

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

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

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

Burden of Proof:

Under section 85A of the EEA, the burden of proof is on the Complainant. If the Complainant meets the threshold, it is then for the Respondent to rebut the presumption of discrimination.

In Melbury Developments Ltd v. Valpeters [2010] E.L.R. 64 (the “Melbury Developments Case”), at page 68, the Labour Court addressed the burden of proof, finding:

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

Caselaw:

In Nano Nagle School v. Daly [2019] IESC 63 (“the Nano Nagle Case”), the Supreme Court addressed the employer’s obligation to provide reasonable accommodation to an employee in the following terms:

“89. This does not, of course, mean that the duty of accommodation is infinite, or at large. It cannot result in removing all the duties which a disabled person is unable to perform. Then, almost inevitably, it would become a "disproportionate burden". If no real distinction can be made between tasks and duties, there is no reason, in principle, why certain work duties cannot be removed or "stripped out ". But this is subject to the condition it does not place a disproportionate burden on the employer. But to create a new job will almost inevitably raise the question as to whether what is in contemplation is a disproportionate burden. It is necessary to ensure that, even with reasonable accommodation, proper value is imported to the words of s.16(1), to ascertain whether an employee is, or is not, "fully capable of undertaking the duties" attached to the position. But it is hard to see there would be any policy or common good reason why simply the distribution of tasks, or their removal, should be confined only to those which are non-essential. The test must be one of fact, to be determined in accordance with the employment context, instances of which are as illustrated in s.16(3). The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee. It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment is reasonable accommodation in the job, or whether, in reality, what is sought in an entirely different job. Section 16(1) of the Act refers specifically to "the position", not to an alternative and quite different position.

[…]

106. But I would again wish to emphasise these conclusions are not to be understood as requiring a situation where the duty of an employer is understood as having to provide an entirely different job. The duty of accommodation is not an open-ended one. There is no obligation to redefine the employment of an airline pilot as an airline steward, or vice versa. The question is, rather, to consider whether the degree of redistribution, or "accommodation", is such as to effectively create a different job entirely, which would almost inevitably impose a disproportionate burden on an employer. Even within the scope of compliance, a situation may be reached where the degree of re-arrangements necessary, whether by allocation of tasks, or otherwise, might be such as to be disproportionate. It is a matter of degree, capable of being determined objectively.”

In Cunningham v. Irish Prison Service [2020] IEHC 282 (the “Cunningham Case”), Barr J. noted at paragraph 72: 

“In addition, the case law makes it clear that the employer does not have to create a job for the person with the disability nor do they have to provide measures that are unduly burdensome. This is the test of proportionality or reasonableness: see Nano Nagle judgment at paras.89 and 106.”

Barr J. concluded that there was no one-size-fits-all approach and the nature of the obligation to provide reasonable accommodation depended on the circumstances. 

Finally, in HR Rail C-485/20, CJEU (Third Chamber), 10 February 2022 (the “HR Rail Case”), the Court of Justice of the European Union determined that “reassignment to another job may constitute an appropriate measure”, albeit not to such an extent that it poses a “disproportionate burden” on the employer. The employee must also have the necessary competence, capability and availability for the new role. There must also be a vacancy available for the employee to fill. 

Award:

Section 82 of the EEA provides that the maximum amount which may be ordered by way of compensation is two years’ remuneration. The EEA is derived from the following EU Directives: 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; 2006/54/EC of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast); and 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial and ethnic origin. Therefore, in any case where there is a breach, the Von Colson Principles apply and any award must provide a real deterrent against future infractions.   

Findings and Conclusion:

The Complainant was diagnosed with a hernia in January 2025. It was accepted that the Complainant had a disability within the meaning of the EEA and therefore enjoyed the protections of the EEA. While the Respondent highlighted the short-term nature of the Complainant’s disability in its submissions, I note that there is no legal requirement for a disability to be long-term, for the EEA to apply. Further, the Respondent made submissions concerning the Complainant’s previous back injury and a related settlement agreement dated August 2021. However, a previous back injury and settlement agreement do not exempt the Respondent from its obligations under the EEA.  

Reasonable Accommodation:

This complaint largely centred on the Respondent’s alleged failure in its obligation to provide the Complainant with reasonable accommodation. It was common case that in or around 10 March 2025, the Complainant provided a medical certificate to the Respondent which stated that he was fit to attend work “but light duties only, no heavy lifting”. The same medical certificate also stated: “for light duties only, can do a desk job, no heavy lifting”. The Respondent submitted, inter alia, that the medical certificate indicates that the Complainant could only carry out a desk job, stating: “it is clear from the face of the Medical Certificate that it was the only job advised as being capable for the Complainant.” However, I cannot accept that characterisation. On its plain terms, the medical certificate does not indicate that the Complainant is limited only to desk-based work.

As regards the possible modification of the Complainant’s role, the Respondent took issue with the Complainant’s alleged failure to provide any specifics concerning the “light duties” which he could undertake. However, this was not borne out in the evidence. I note that it was the Respondent’s Logistics Manager’s evidence that when he spoke to the Complainant on or around 26 March 2025, the Complainant stated, inter alia, that he could work on bread or on “bulk” products. Further, in his email to the Respondent dated 30 May 2025, the Complainant specifically referred to his ability to work “on bread or bulk” products. In his oral evidence, the Complainant outlined that he could also have worked with lighter products such as flowers, bread and some “bulk” products. The Complainant also referred to his job description. He stated that the tasks outlined therein as the “quality control of electronic products” and the “control and processing of stock levels” do not require heavy lifting. I note that the Complainant gave evidence that he could work with a “track” which is a machine to lift pallets containing heavier goods. Finally, the Complainant referred to the “checker” role in the “Goods-In” Department which he stated does not involve heavy lifting.

It was the Respondent’s evidence that no reasonable accommodation could be implemented for the Complainant, who had suffered a hernia injury. However, no risk assessments, evaluations or relevant correspondence which considered any reasonable accommodation, was put before me. The Respondent referred to its Health and Safety obligations, however, no communications with the Respondent’s Health and Safety Team / Department were put before me and the Respondent’s witness confirmed that there was no such documentation. In the OHP report dated 17 July 2025, the OHP noted that: [l]imiting heavy lifting would be beneficial”. However, there was no oral evidence either from HR or from the OHP regarding the Respondent’s consideration of this specific recommendation. As regards the Respondent’s ultimate determination that there was no reasonable accommodation that could be implemented, the Respondent relied almost solely on the Logistics Manager’s evidence who referred to, inter alia, the difficulty of guaranteeing what the Complainant would “pick”, given the various sizes and weights of the products. However, the Logistics Manager also appeared to be largely guided by the Respondent’s adoption of a broad-brush position in refusing reasonable accommodations to Warehouse Operatives. The Logistics Manager stated that: “the position is that we do not facilitate lighter duties”. He also stated that it is the Respondent’s “policy”, albeit not in writing and a “figure of speech”, that no one in the “Selections” Department gets “lighter duties”. When asked if he was aware of the need for reasonable accommodation, the Respondent’s Logistics Manager stated that it “is never something that has been accepted or accommodated for”. He said that a “picker” needs to work across multiple areas and that it is not something that can be supported.

I am mindful of the Nano Nagle Case and the HR Rail Case. I find that the Complainant sought reasonable accommodation in his job and that he did not seek an entirely different job. Having considered all evidence before me, I am not satisfied that the Respondent comprehensively assessed what reasonable accommodation, if any, could be implemented for the Complainant. Instead, the Respondent adopted a broad-brush position in refusing reasonable accommodations to Warehouse Operatives.

Party Correspondence:

It is clear from the correspondence before me that the Complainant repeatedly sought an appointment to attend the Respondent’s OHP. On 12 March 2025, after being sent home from work, the Complainant emailed the Respondent enquiring if he would be sent to the OHP. The Complainant chased up on this request in his emails dated 24 March 2025, 3 April 2025 and 18 April 2025. The Complainant’s solicitor then wrote to the Respondent on 2 July 2025. The Complainant finally saw the OHP on 17 July 2025, some four months after his first request to see the OHP and some six months after his hernia diagnosis. In her report, the OHP noted that: [l]imiting heavy lifting would be beneficial”. The Complainant then received no correspondence from the Respondent regarding this specific recommendation, for a further six weeks. Following his solicitor’s email dated 8 August 2025 and his own email dated 25 August 2025, the Respondent replied on 29 August 2025, to ask the Complainant to liaise with his own GP, specifically as regards his “ability to partake in heavy lifting”. By way of email response on that same date, the Complainant stated that it was for the OHP, who had access to his work description, to assess if and to what type of work he could return. The Complainant was finally permitted to return to work on 15 September 2025. During this entire time, the Complainant was not in receipt of any income or social welfare. It is unacceptable that the Respondent did not meaningfully engage with the Complainant regarding his OHP appointment request until he instructed a solicitor and that during this entire time, he remained out of work with no income.

I note that the Respondent did not call anyone from HR to provide evidence. I further note that the Respondent’s witnesses did not know when the OHP referral was made. I note that the Respondent’s current Manager indicated that it takes six to eight weeks to arrange a risk assessment for store employees. It is both unjustifiable and insufficiently explained why the Complainant faced a delay of approximately four to six months before attending the OHP.

Finally, I note with concern, that in the course of the above timeline, the Respondent wrote to the Complainant on 17 April 2025, outlining its issues regarding the Complainant’s “Absence from Work & Correct Absence Procedure” and indicating that he may be subject to disciplinary action.

Burden on the Respondent:

The Respondent placed particular reliance on paragraphs 72 and 73 of the Cunningham Case, where the Supreme Court held, inter alia, that an employer is not required to create a job for an employee or provide measures which are unduly burdensome. The Respondent employs over 7,500 staff across 190 sites on the island of Ireland. The Respondent failed to satisfactorily demonstrate how any reasonable accommodation would be unduly burdensome within the meaning of s.16(3) of the EEA, whether by reference to financial, or other, costs. Moreover, it is hard to envisage how the provision of a reasonable accommodation for an employee suffering from a hernia injury, would be unduly burdensome for the Respondent, particularly given the scale of its business.

Conclusion:

Having considered all of the evidence, I find that the Respondent failed to provide reasonable accommodation for the Complainant and that the Respondent’s actions amounted to discrimination against the Complainant on the grounds of disability.

In deciding the award of compensation, I have taken into account:

·     The Complainant’s financial loss, which amounted to six months’ pay;

·     The Respondent’s failure to engage in any meaningful way with the Complainant regarding an OHP appointment, until he instructed a solicitor;

·     The Respondent’s unexplained delay in organising the OHP appointment;

·     The Respondent’s letter dated 17 April 2025 outlining its issues regarding the Complainant’s “Absence from Work & Correct Absence Procedure” and indicating that he may be subject to disciplinary action;

·     The Respondent’s failure to comprehensively assess what reasonable accommodation, if any, could be implemented for the Complainant;

·     The Respondent’s adoption of a broad-brush position in refusing reasonable accommodations to Warehouse Operatives; and

·     The Von Colson Principles which providethat any award must provide a real deterrent against future infractions.

In light of the foregoing, I decide that it is just and equitable to order the Respondent to pay to the Complainant compensation in the amount of €28,000, which is approximately one year’s salary.

For the reasons outlined above I find that the Respondent failed to provide reasonable accommodation for the Complainant and that the Respondent’s actions amounted to discrimination against the Complainant on the grounds of disability. Therefore, I order the Respondent to pay the Complainant €28,000.

Employment Equality Act, Discrimination, Disability, Reasonable accommodation.