Complainant

Respondent

Parties

Geraldine  Rogers

Waterford And Wexford Education And Training Board

Representatives

Mr Bracken BL, instructed by Seán Ormonde Solicitors

Robin McKenna IBEC

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-00070155-001

21/03/2025

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

CA-00070649-001

08/04/2025

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

CA-00070649-002

08/04/2025

The Complainant, who was employed by the Respondent from September 2007, acquired a significant visual impairment following a serious illness in 2016. The Complainant alleges that the Respondent failed to provide reasonable accommodation, adequate workplace support and equal access to training opportunities, resulting in disability discrimination, victimisation, less favourable conditions of employment and, ultimately, constructive dismissal through retirement on ill-health grounds in November 2024.

The Respondent denies the allegations and maintains that it took extensive steps to support the Complainant, including referrals to Occupational Health Services, engagement with Vision Ireland, workplace assessments, provision of specialist equipment and software, adapted working arrangements and ongoing training and support. The Respondent further contends that the Complainant voluntarily pursued ill-health retirement and did not exhaust the available grievance procedures before ending the employment relationship.

The Complainant alleges that, following a return to work with a visual impairment some years ago, they experienced disability discrimination through the Respondent’s failure to provide reasonable accommodation, adapted training, and adequate support.

It is contended that the Complainant was excluded from training and development opportunities afforded to colleagues, adversely affecting career progression and wellbeing.

Despite raising concerns through formal channels, the Complainant maintains that no effective action was taken, and that the resulting stress and anxiety ultimately contributed to their retirement on ill-health grounds.

Case Facts and Chronology

The Complainant commenced employment with the Respondent in  September 2007 as a Resource Person, providing learning support and literacy tutoring.  In  September 2011, this employment was superseded by a Contract of Indefinite Duration (CID).

The Complainant developed a visual impairment following a serious illness in 2016 and alleges that the Respondent failed to provide appropriate support, accommodations, and adapted training thereafter. Following a return-to-work meeting in December 2016, the Complainant states that they were required to resume duties without adequate consideration of their disability.

The Complainant contends that, from 2017 to 2024, repeated requests for adapted training and workplace supports were not properly addressed, resulting in exclusion from training and workplace developments. Concerns raised with HR in 2020 allegedly led to no meaningful change.

Following an external workplace assessment in early 2024, several recommendations were made, including specialist training, upgraded software, and assistive equipment. The Complainant maintains that a number of these recommendations were not implemented. They further allege that colleagues received training opportunities from which they were excluded and that training was often scheduled on days they were not rostered to work for medical reasons.

The Complainant also submits that training records were disclosed only after a further request by their legal representatives, which they contend hindered their ability to advance their claims. In April 2024, the Complainant met with the acting AEO to discuss the Respondent’s Equality and Disability Policy. The Complainant alleges that the interaction was upsetting and unsupportive and that it reinforced a long-standing perception that their concerns were not being addressed.

In November 2024, the Complainant retired on ill-health grounds. The Complainant contends that this decision resulted from years of inadequate support, lack of accommodation, and exclusion from training and workplace opportunities. They further allege that this caused loss of career progression, financial loss arising from early retirement, and a significant negative impact on their confidence, wellbeing, and family life.

Issues for Adjudication

The Commission is  asked to determine whether:

a. The Respondent discriminated against the Complainant on the ground of disability in relation to conditions of employment.

b. The Respondent failed to provide reasonable accommodation for the Complainant’s disability.

c. The Respondent discriminated against the Complainant by failing to provide training and development opportunities available to other employees.

d. The Respondent victimised the Complainant contrary to the Employment Equality Acts.

e. The conduct of the Respondent was such that the Complainant was constructively dismissed from their employment.

Discrimination

The  Employment Equality Acts 1998-2015 provide that discrimination occurs where a person is treated less favourably than another person is, has been, or would be treated in a comparable situation on one of the protected grounds, including disability.

In the present case, the Complainant contends that they were treated less favourably than colleagues without a disability in relation to training opportunities, workplace support, and conditions of employment. It is alleged that the Respondent’s failure to provide appropriate accommodations and accessible training resulted in the Complainant being disadvantaged in the workplace because of their disability.

Discrimination – Burden of Proof

In addressing the burdens associated with Section 85A(1) of the Employment Equality Act 1998, the Complainant cites  Cork City Council v McCarthy EDA21/2008, Southern Health Board v Mitchell [2001] E.L.R. 201, Melbury Developments Ltd v Valpeters EDA 09/17, Ntoko v Citibank [2004] ELR 116 and  Dublin Corporation v Gibney’s EE5/1986.

Disability Discrimination

The Complainant submits that they are a person with a disability within the meaning of the Employment Equality Acts. The Complainant cites An Employee v Bus Éireann [2003] ELR 351, Mr O v A Named Company DEC-E2003-052, A Government Department v A Worker EDA094, and Customer Perception Limited v Leydon [2004] 15 E.L.R. 101  in this regard. It is submitted that there can be no doubt that the Complainant falls within the protection of the Acts, having suffered a significant loss of visual processing ability.

Knowledge of Disability

The Complainant relies on Connacht Gold Co-Operative Society v A Worker EDA0822 and Flynn v Emerald Facilities Services DEC-E2009-065  and  submits that the Respondent was fully aware of their disability throughout the relevant period, having knowledge through medical assessments, periods of absence, requests for assistance and accommodation, and ongoing discussions regarding their needs.

It is further alleged that, following the Complainant’s return to work, the Respondent failed to adequately enquire into or address those needs and failed to provide appropriate accommodations and support. The Complainant contends that these failures support their claim of disability discrimination under the Employment Equality Acts.

Reasonable Accommodation

The Complainant relies on Section 16 of the Employment Equality Act 1998, which places an obligation on employers to provide reasonable accommodation and appropriate measures to enable a person with a disability to access, participate in, advance in employment, and undergo training.

The Complainant further relies on Humphries v Westwood Fitness Club [2004] E.L.R. 296, where it was held that employers must make adequate enquiries into an employee’s disability, obtain all relevant information, consult with the employee, and consider appropriate accommodations before making decisions which may affect them.

This approach was subsequently affirmed in Kennedy v Stresslite Tanks Limited DEC-E2009-078, X v A Nursing Home DEC-E2010-090, A Government Department v A Government Worker ADE0516, and Mr A v A Government Department EDA061, which emphasise the employer's obligation to proactively assess an employee's needs and consider appropriate measures.

The Complainant submits that the Respondent failed to comply with these obligations by not adequately assessing their needs, failing to implement appropriate accommodations and adapted training, and failing to engage in a meaningful, process-driven consultation regarding the supports required to enable them to perform their role effectively.

Unfair Dismissal – Constructive Dismissal

The Complainant's claim is brought under Section 1(b) of the Unfair Dismissals Act 1977, which recognises constructive dismissal where an employee resigns due to the conduct of their employer.

The Complainant relies on Joanne County v Viatel Ireland Limited ADJ-00048424,  Niamh Carroll v Newbridge Merchant Limited ADJ-00038937, Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, and Berber v Dunnes Stores [2009] IESC 10, which establish the "contract test" and the "reasonableness test" in constructive dismissal cases.

The Complainant further relies on Berber v Dunnes Stores, Thomas Kasak v Darlex Risk Management ADJ-00047124, Robert Aylward v Archicon Ltd, ADJ-00050307, which recognise the implied contractual duty of mutual trust and confidence between employer and employee.

The Complainant also relies on An Employee Mr OO v An Employer (No. 2) [2005] ELR 132, Safety, Health and Welfare at Work Act 2005, ADJ-00035087 and ADJ-00014512, which recognise that failures relating to workplace support, health and safety, and reasonable accommodation may contribute to a finding of constructive dismissal.

The Complainant submits that the Respondent's alleged failure to provide reasonable accommodation, meaningful training, appropriate support, and suitable work fundamentally undermined the employment relationship and entitled them to regard themselves as constructively dismissed.

Summary of the Law as Applied to the Facts

The Complainant submits that the Respondent failed to assess their  disability-related needs or provide appropriate reasonable accommodation. She contends that the lack of support adversely affected her mental health and that she was denied equal access to training and development opportunities available to colleagues. The Complainant argues that these failures breached the Respondent's obligations under the Employment Equality Acts and ultimately contributed to her retirement on ill-health grounds.

Impact on the Complainant

The Complainant states that the onset of a serious illness and resulting visual impairment had a significant impact on both their professional and personal life. They contend that, rather than receiving appropriate support on their return to work, they experienced a lack of understanding and accommodation, felt isolated within the workplace, and perceived ongoing pressure in relation to their attendance and capacity to work.

The Complainant further maintains that the absence of accessible training and workplace supports left them unable to participate fully in the organisation and contributed to feelings of exclusion from development and advancement opportunities. It is alleged that these circumstances adversely affected the Complainant’s confidence, wellbeing and mental health, causing stress and anxiety and placing strain on family life.

The Complainant submits that, after several years of these difficulties, they felt they had no option but to retire on ill-health grounds, resulting in financial loss and the premature end of their career. The Complainant hopes that the issues raised will be appropriately considered and that lessons can be learned to support employees with disabilities in the future.

Redress and Rationale

The Complainant seeks redress in respect of the alleged disability discrimination, failure to provide reasonable accommodation, failure to provide training, victimisation, discrimination in conditions of employment, and constructive dismissal. The Complainant contends that the Respondent failed to adequately assess their needs, provide appropriate workplace supports, or ensure equal access to training and development opportunities.

It is alleged that these failures had a significant impact on the Complainant's employment, wellbeing, and career progression and ultimately contributed to their retirement on ill-health grounds. The Complainant therefore seeks compensation under the Employment Equality Acts 1998-2015 and the Unfair Dismissals Act 1977, reflecting the alleged losses suffered and the impact on their dignity and wellbeing.

The Complainant submits that any award should vindicate their statutory rights, reflect the seriousness of the matters complained of, and serve as a deterrent against similar conduct. The Adjudication Officer is invited to grant such financial and non-financial remedies as are considered just and equitable in the circumstances.

Conclusion

The Complainant submits that the evidence supports their claims of disability discrimination, failure to provide reasonable accommodation, failure to provide training, victimisation, and constructive dismissal. It is contended that these matters had a significant adverse impact on the Complainant's employment, wellbeing, and career, ultimately contributing to their retirement on ill-health grounds.

Accordingly, the Adjudication Officer is invited to find in favour of the Complainant and to award such redress as is considered appropriate in the circumstances. The Complainant reserves the right to make further submissions and to call witnesses at the hearing.

In their submission the Respondent refutes all allegations of failing to provide reasonable accommodation, training and of having victimised the Complainant. The Respondent sets out that the Respondent consistently supported the Complainant in all matters and followed the direction of the Occupation Health specialists and Vision Ireland.

Both internal and external risk advice was sought and taken with recommendations put in place. The Respondent asserts that the termination of employment in November 2024 was on the grounds of ill health.

Constructive Dismissal Complaint

On the matter of constructive dismissal, the Respondent refutes all such allegations and sets out that the Complainant themselves initiated the process over a considerable period of time having given it a great deal of deliberation. Further,  the Respondent sets out that the Complainant at no point raised a grievance in accordance with agreed procedures and best practice. The Respondent points to an event in 2019 where the Complainant had utilised the same process on an entirely unrelated matter and asserts that  they could not have been unaware of the process and the necessity of utilising the same.

Cognisable Period

The Respondent points to the Complainant to the WRC being made on the 21st of March 2025  on the EEA and the 8th of April 2025. On that basis the Respondent sets out that the cognisable period for the EEA complaint is 22nd September with a further date of 9th of October related specifically to victimisation and training complaints. The Cognisable period for the Unfair Dismissals Act, 1977 claim would be 9th of October  and the cognisable period being

Complaint Background

Medical Event

It is acknowledged that the Complainant experienced a significant medical event in January 2016, resulting in a visual impairment. During and following this period, the Respondent outlined a range of supports provided to the Complainant. These included the accommodation of a three-day working week, at the Complainant’s request, together with the provision of specialised equipment, software and associated training.

Occupational Health Advice

An Occupational Health Specialist (OHS) was engaged. The OHS recommended that, on medical grounds, the Complainant should continue working three days per week on a one-to-one basis and indicated that this arrangement was likely to be long-term.

Temporary Rehabilitation Remuneration Overpayment

In August 2023, the Respondent wrote to the Complainant regarding an overpayment of Temporary Rehabilitation Remuneration (TRR), advising that the benefit would cease. The Respondent outlined options, including a permanent reduction to three days or a reduction based on reasonable accommodation while maintaining a full-time contract. This followed a telephone discussion earlier that month.

A meeting took place in September 2023 between the Respondent, the Complainant and the Complainant’s spouse, at which it was agreed that the negative TRR balance would be borne by the Respondent. The Respondent subsequently clarified the reasonable accommodation arrangements. At that time, the Complainant confirmed a preference to reduce to a three-day working week on the basis of reasonable accommodation, while retaining the full-time contract. The Respondent also confirmed that a pension assessment had been requested and that a workplace risk assessment was being arranged.

Further OHS Advice and Arrangements

The Complainant was again referred to the OHS, which recommended ongoing workplace accommodation, including environmental assessment and engagement with specialist services for visually impaired persons. During October to November 2023, the Respondent continued to engage with the Complainant in implementing the OHS recommendations. In November 2023, it was confirmed that the Complainant would continue working three days on a one-to-one basis and that both internal and external risk assessments would be conducted. Further correspondence issued later that month in support of this process.

Vision Ireland Assessment and Exploration of Exit Options

An external workplace assessment was conducted in January 2024, with the report completed in February 2024. In the same month, the Complainant sought information regarding potential retirement benefits.

In April 2024, the Respondent confirmed that staff had received training in guiding and evacuating a visually impaired person. A further issue arose concerning accessibility of the Complainant’s computer, and arrangements were made to update the relevant software.

Additional training was organised for the Complainant in relation to the Respondent’s HR system. On the day of that training, the Complainant provided a written statement indicating dissatisfaction with the level of support and adapted training since 2017 and expressing a wish to explore exit options.

Provision of ICT Equipment

In June 2024, internal communications took place regarding the provision of ICT equipment for the Complainant, and this was communicated to her. In August 2024, it was confirmed that the equipment would be installed before the end of the summer period. A meeting took place with the Complainant and her spouse to review the equipment. Issues were identified regarding printer location and further training needs, which the Respondent undertook to address. Retirement options were also discussed, including the possibility of financial mitigation in the event of early retirement. The meeting concluded with the Complainant indicating an intention to take further sick leave.

Addressing of Training Issues

The Respondent continued to address the training issues raised and explored the availability of additional support. It was noted that a number of staff across the site required further training, and efforts were made to identify appropriate assistance for the Complainant.

Ill Health Leave and Further Queries on Exit

The Complainant was absent due to illness for approximately four weeks, followed by a period of annual leave extending into August 2024. During this period, the Complainant sought further information in relation to pension entitlements and arranged to meet financial advisers.

In July 2024, the Complainant indicated that all options were under consideration and, in August 2024, advised that ill-health retirement was being contemplated.

Towards the end of August 2024, the Complainant requested a copy of her personnel file and again indicated that she was considering ill-health retirement, seeking the necessary documentation. The Respondent confirmed that these would be provided.

Medical certification covered the period from September to October 2024, and an OHS consultation noted that the Complainant was experiencing perceived work-related stress. A meeting took place in September 2024 between the Respondent, the Complainant and her spouse to assist with completion of retirement documentation. A further medical certificate covered the period from October to November 2024.

Application for and Approval of Ill Health Retirement

In October 2024, the Respondent became aware that the Complainant had applied for ill-health retirement. Later that month, the Respondent was informed that the application had been approved and notified the Complainant accordingly. The Complainant confirmed an intended retirement date of November 2024.

Prima Face and Burden of Proof

It is noted that the Equality Tribunal and Labour Court have consistently required that a complainant must first establish a prima facie case of discrimination. This requires the complainant to present facts from which it may reasonably be inferred that they were treated less favourably than another person on a prohibited ground. In Margetts v Graham Anthony & Company Limited (EDA038), the Labour Court clarified the evidential threshold applicable at this stage. The Court held that the complainant must, on the balance of probabilities, establish primary facts capable of supporting an inference of discrimination. Once such facts are established to the satisfaction of the Court, the burden of proof shifts to the respondent to rebut the inference and demonstrate that no discrimination occurred.

It is well established that the mere fact that a complainant falls within a protected ground is not, of itself, sufficient to establish discrimination. The complainant must adduce additional facts from which it may be inferred, on the balance of probabilities, that discrimination has occurred.

The Labour Court’s approach, as set out in Mitchell v Southern Health Board (DEE011), provides that a complainant must first establish primary facts capable of supporting an inference that the principle of equal treatment has not been applied. These facts must be of sufficient significance to raise a presumption of unlawful discrimination.

Only where such a prima facie case is established does the burden of proof shift to the respondent, who must then demonstrate that there was no breach of the principle of equal treatment.

It is established in Cork City Council v Kieran McCarthy (EDA0821) that, where primary facts are proven, it remains for the adjudicative body to determine whether those facts are of sufficient weight to give rise to an inference or presumption of discrimination.

The Respondent submits that the complainant has not discharged the required evidential burden to establish a prima facie case. In particular, it is contended that the complainant has failed to demonstrate that they were treated less favourably on the discriminatory ground relied upon, and therefore the burden of proof does not shift.

In this regard, reliance is placed on Melbury Developments v Valpeters (EDA0917), where the Labour Court emphasised that mere assertions or speculation, unsupported by evidence, are insufficient to establish a factual basis from which discrimination may be inferred. The Court further confirmed that findings cannot be based on conjecture or hypothetical comparisons in the absence of evidence of a comparable situation.

Comparator

it is further submitted that the complainant has not identified an appropriate comparator, nor established that a person in a comparable situation was treated more favourably. Accordingly, the Respondent maintains that no inference of discrimination arises and, even if the evidential threshold were met, the claim would fail in the absence of proof of less favourable treatment within the meaning of the Employment Equality Acts 1998–2015.

Respondent Position  - EEA

It is accepted that the Complainant has a medical condition deemed a disability. However, the Respondent denies any discrimination and, on the contrary, has continually supported the Complainant in relation to the provision of equipment and software to enable her to engage in work at a reasonable level.

The Respondent assert that the early retirement was a long-standing consideration of the Complainant going back to April 2024 until August when she herself raised the possibility of Ill health retirement and it was clearly her intention to follow this route.

Complaints CA-00070155-001 & CA-00070649-001 under s 77 of the Employment Equality Act, 1998

1. Preliminary Matter: Cognisable Period

I have referred to above the application for the merging of the complaints and have explained that the Respondent has not objected and for the sake of clarity and ease I have instructed the Commission staff to do so. For further clarity, I have decided that the earlier application stands in terms of the cognisable period and have also taken the later complaint fully into consideration as requested.

I am satisfied that the Complainant is in time to bring their constructive dismissal complaint and the applicable cognisable period for the employment equality complaint, in part,  is six months prior to 21/03/2025, i.e. 21/09/24.

I think it important to be clear that although I was provided with extensive detail on events prior to these dates, these are only considered in a contextual manner and not breaches of the Act in and of themselves. The substantive assessment of liability is confined to matters occurring within the cognisable period, except where earlier events assist in understanding the circumstances giving rise to the complaints.

I believe it important to distinguish between earlier events which may have been less than satisfactory and the subsequent intervention  of Ms M from 2023 onwards. At this point the efforts of this staff member were described by the Complainant as sympathetic and genuine in their efforts to assist.

The previous events are matters which, as the Respondent submitted, ought to have been raised at the relevant time.

2. Disability and Knowledge of Disability

It is clear and uncontested that the Complainant acquired a significant disability. The circumstances described are undoubtedly difficult and have attracted considerable sympathy. However, the question before me is whether the Respondent's conduct constituted a breach of the Employment Equality Acts.

Having regard to the authorities relied upon, I am satisfied that the Complainant has established a prima facie case to shift the initial burden to the Respondent.

The Respondent has not argued that the complainant does not have  a significant disability and in fact refers to it in their submissions of the efforts to assist the complainant that they have gone to. It is also clear that this is a most distressing situation for the Complainant to find themselves in and for this they have my sympathy for what they have, and continue to, endure. However, my greatest sympathies aside, the issue  for me to discern here is the nature of what reasonable accommodation, if any, was offered to the complainant in the cognisable period. Accordingly, the dispute does not concern whether the Complainant had a disability or whether the Respondent was aware of that disability, both of which are accepted.

However, the acquisition of the disability in itself is not enough to ground the complaint, but the treatment of the Complainant by the Respondent is the key issue.

The facts of the case as they apply to this complaint under the employment equality act are that there was an acquired disability, the Respondent was on full notice and in this consulted with a reputable OHS and, in the cognisable period, conducted assessments and reasonably attempted to introduce measures  in the circumstances.

A significant effort was made, particularly by one of the Respondent staff  to assist here in the matter and for which the Complainant acknowledged the efforts of that staff member in their oral evidence following the OHS assessment in October 2023 and the VI assessment in early 2024 both of which predate the cognisable period. This evidence was supported in the evidence of the Complainant’s husband with regard to this person.

 Looking at matters in their historical context, there were occasions when the Respondent's response appears to have been less effective than it might have been. However, I do not find evidence of deliberate disregard for the Complainant's needs. In any event, those matters fall outside the cognisable period and are considered only insofar as they provide context.

In their attempts to accommodate , OHS advice was sought and implemented as was the same from other external bodies where equipment was provided and staff were trained in evacuation procedures. It is true that the Complainant reports feeling  left out by not being involved in the training on other matters, but not enough evidence was adduced to me to demonstrate that this was unreasonable in the broader context. In that sense, the Complainant had a need which, from their perspective, appeared to be unmet. However, it is not clear to me that the training missed was necessary, or that the cause of their non-involvement was unreasonable conduct by the Respondent.

I have to assess not whether the accommodations were perfect, but whether the Respondent discharged its statutory obligations under the Act. It is clear from the oral evidence of the Complainant that after later 2023 the Respondent involved the OHS further and introduced the element of what was then called the NCBI now Vision Ireland.  It was at this point with the introduction of technology  and other changes that the Complainant unfortunately became  ill leaving the Respondent in a position of being unable to progress matters further.

 Training and Conditions of Employment

I have not found credible evidence that the Complainant was denied training during the cognisable period. In reaching that conclusion, I have had regard to the evidence of the Respondent employees.

It was further evidence that training was arranged and delivered to the Complainant and that the Respondent  also liaised with IT personnel to ensure that all recommended equipment was obtained. By August 2024, a new computer, Copilot accessibility software and a printer had been provided and a concern regarding the placement of the Complainant’s  printer was subsequently resolved.

In relation to BKSB, an online e-learning and assessment software platform, the Respondent  maintained  that the training roll-out had not been completed across the organisation at the relevant time. She maintained that not all staff had received BKSB training and that the programme had not yet been fully introduced within the organisation. It was also given in evidence that efforts were being made to identify an internal trainer who could provide one-to-one support.

In  this respect the Complainant was not treated in a less favourably  to their colleagues.

Less Favourable Treatment

I have not been presented with sufficient evidence within the cognisable  period and  that the Complainant was treated less favourable in all the circumstnces. Clearly the Complainant is at a distinct disadvantage in their disability  and has doubtlessly caused them an inordinate amount of distress and hardship, there is nothing to show that this was exacerbated  by the Respondent in the cognisable period and rather the evidence shows a concerted effort during that time to deal with all issues for the Complainant.

Comparator & Burden of Proof

While a named comparator is not required, and a hypothetical comparator would suffice, I am satisfied the Respondent has discharged the burden which shifted to it under section 85A by demonstrating the steps taken to assess and accommodate the Complainant during the cognisable period.

Victimisation

The Complainant set out in one of their complaint forms that they had suffered victimisation. I have been offered nothing to lead me to conclude that the Complainant was victimised by the Respondent. I have seen no protected act that would suggest the Respondent had set out to victimise the Complainant through the alleged  detriment set out elsewhere. I can find no causal link and must reject that aspect of the claim.

Overall, I have to find that the Respondent has rebutted the presumption placed upon them and I cannot find that the Complainant was subjected to discrimination contrary to the Employment Equality Acts.

For all the reasons set out above I must  find the Complainant claim to be not well founded.

Complaint CA-00070649-002 under Section 8 of the Unfair Dismissals Act, 1977

Section 1(b) of the Unfair Dismissals Act 1977 provides that constructive dismissal occurs where an employee terminates their contract of employment, with or without prior notice, in circumstances where, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving notice, or where it was reasonable for the employee to terminate the contract.

In a constructive dismissal complaint, the burden of proof rests on the Complainant to establish, on the balance of probabilities, that their resignation or retirement was not voluntary in the ordinary sense but was caused by the Respondent’s conduct. The applicable tests are commonly described as the contract test and the reasonableness test, and these have been well set out by the parties.

The Complainant must demonstrate either that the Respondent was guilty of conduct amounting to a significant breach of contract, including a breach of the implied term of mutual trust and confidence, or that the Respondent acted so unreasonably that the Complainant could not fairly be expected to remain in employment. The threshold is a high one, and it is generally necessary to consider whether the Complainant exhausted, or had reasonable grounds for not exhausting, internal grievance procedures before ending the employment relationship. The Representatives between them have clearly laid out the Contract Test, Reasonableness and the necessity of exhausting internal procedures. Whilst this is a high bar to overcome, though not necessarily fatal in all circumstances.

It is the case of the Complainant that their description of the lack of reasonable accommodation after many years was the reason that they terminated their own contract. As I have outlined above, I could not find that the employer was unreasonable in their accommodation based on the evidence presented to me and it is not appropriate for me to find that it is unreasonable under this heading.

The contract test in constructive dismissal asks whether the employer’s conduct amounted to a repudiatory or fundamental breach of the contract of employment, such that the employee was entitled to treat the contract as at an end. The contract test derives from the definition of dismissal contained in section 1(b) of the Unfair Dismissals Act 1977. The question is whether the employer committed a significant breach going to the root of the contract or demonstrated an intention no longer to be bound by an essential term of the contract, such that the employee was entitled to treat the contract as terminated.

From the evidence before me, I am satisfied that the Respondent was actively engaged in providing accommodations and supports to the Complainant. The Respondent was engaging with external organisations and implementing recommended measures. In those circumstances, I cannot find that the Respondent repudiated a fundamental term of the contract of employment. On the contrary, the evidence demonstrates that the Respondent was making efforts to improve the Complainant's situation and to address the difficulties arising from their disability.

The reasonableness test in constructive dismissal asks whether, judged objectively, the employer conducted itself so unreasonably that the employee was entitled to resign or could not fairly be expected to remain in employment. In the present case I cannot find where the employer was engaged with external bodies and had purchased specialist equipment and had the engagement of staff members with the Complainant, that it was objectively unreasonable.

It is also clear that the Complainant had begun to consider early retirement in all the circumstances of their employment and personal life,  and I accept the complainant’s evidence that they experienced  stress and incredible upset in the months prior to her retirement on ill-health grounds; however, I cannot find on the evidence that the respondent engaged in conduct which resulted in a fundamental breach of the contract, or which indicated that the respondent no longer intended to be bound by the terms of the contract. Nor do I find that the respondent conducted its affairs in relation to the complainant so unreasonably that the complainant was forced to terminate their contract through ill-health retirement.  

In all of those circumstances I must find this complaint to be not well-founded.

Complaints CA-00070155-001 & CA-00070649-001 under s 77 of the Employment Equality Act, 1998

For the reasons set out above I find this complaint not well-founded.

Complaint CA-00070649-002 under Section 8 of the Unfair Dismissals Act, 1977

For the reasons set out above I find this complaint not well-founded.

Reasonable Accommodation,  Cognisable Period