Complainant

Respondent

Parties

Marco  Pacheco

Apleona Ireland Limited

Representatives

Self-represented

Catriona Montague Alastair Purdy LLP

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-00078846-001

19/12/2025

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

CA-00078846-002

19/12/2025

The Complainant was employed by the Respondent as a Cleaning Operative from the 18 August 2025 to the 18th of December 2025 working 39 hours per week and earning €15 per hour.

The Complainant made two claims:

CA-00078846-001 A complaint pursuant to section 77 of the Employment Equality Act, 1998 – 2015 (hereafter referred to as “the EEA”), alleginf discriminatory dismissal.

CA-00078846-002 a claim alleging victimisation for taking an action set out in Section

74 of the EEA.

Both claim was fully contested by the Respondent.

In a WRC Complaint Form received by the WRC on the 19th of December 2025 the Complainant included the following submissions in support of the claims made:

Regarding Claim CA-00078846-001 Discriminatory Dismissal,  the following submission was made:

“I was employed by Apleona Ireland Limited from 18 August 2025 until my dismissal on 18 December 2025.

During my employment, I raised a formal grievance regarding serious workplace intimidation, including an incident involving my supervisor where I was prevented from leaving a room and security was called.

As a result of the situation at work, I went on certified sick leave due to work-related stress, which was known to my employer.

While my grievance appeal process was still ongoing, I was dismissed from my employment with immediate effect shortly after my period of certified sick leave had ended.

I believe that my dismissal was discriminatory, as it occurred in the context of work-related stress amounting to a disability under the Employment Equality Acts, and because I opposed and raised concerns about inappropriate treatment in the workplace.”

Regarding CA-00078846-002 alleging victimisation under the EEA the following submission was made:

“During my employment with Apleona Ireland Limited, I raised a formal grievance regarding serious inappropriate behaviour by my supervisor.

Following the raising of this grievance, I was subjected to victimisation and penalisation. This included being warned by HR that communicating concerns could result in my dismissal.

I was also subjected to pressure after raising my grievance, including repeated contact from management and questioning of my actions and medical certification.

I believe that this treatment amounted to penalisation and victimisation for having taken actions protected under Section 74 of the Employment Equality Acts.”

Further to the Complaints in the WRC Complaint Form as set out above, the Complainant delivered a detailed submission on the 27 July 2026 as follows:

1. Introduction

This submission is made by the Complainant, Marco Pacheco, in support of his complaints to the Workplace Relations Commission under reference CA-00078846. It sets out the facts relevant to both the discrimination complaint (CA-00078846-001) and the penalisation complaint (CA-00078846-002). It refers to supporting documents as "Doc" followed by a number.

The Complainant does not seek reinstatement or re-engagement. He seeks financial compensation only. He respectfully asks that all further hearings, and any mediation, be conducted remotely, as he no longer lives in Ireland.

2. Background

1. The Complainant holds dual citizenship, Brazilian and Portuguese. He worked in Ireland on the basis of his Portuguese (EU) passport. The Respondent employed him as a Cleaning Operative at the Abbott Vascular site in Clonmel, County Tipperary. He worked under the supervision of Denise Doyle and Justyna Szaliga. Roy Ybanez was a colleague at the same site, also employed as a Cleaning Operative, with no supervisory authority over him. He was on probation at the time

2. The Complainant notes that he had previously worked for the Respondent, at the same site, for a short period in late 2024. That employment ended on good terms, and the Respondent subsequently invited him to return, which led to the employment giving rise to this complaint.

3. The Complainant is of Brazilian ethnic and national origin, and English is not his first language. This is relevant to how he experienced the events described below.

4. The Complainant's shift was Monday to Thursday, 18:00 to 02:30, and Friday, 17:00 to 23:30). Some documents refer to a 01:00 start time. That refers only to the scheduled time for cleaning the stairwell — one task within his shift — and not to the start of his working day.

3. Factual Chronology

3.1 The incident of 15 October 2025

5. On 15 October 2025, during his scheduled break, Denise Doyle and Roy Ybanez approached the Complainant. They raised two matters: a broom left in the canteen, and a short period of playing pool with a new colleague. The Complainant acknowledged both matters and apologised. He explained that both were first-time occurrences and had not affected his cleaning duties.

6. Later that evening, while the Complainant was in the link area, Denise Doyle told him she would report the matter. The Complainant told her he also wished to complain about Roy Ybanez's conduct. Ms Doyle then telephoned him three times — at 21:03, 21:18 and 21:29 — asking him to come to the site office.

7. When the Complainant arrived at the office, Roy Ybanez was already there and spoke to him in a loud, confrontational tone. Denise Doyle then said that if the Complainant was recording the conversation he would be fired, telling him: "No, you will get fired." She stood in front of the door, blocking his exit, and told him he had to stay until security arrived. The Complainant states he felt intimidated and trapped and was only able to leave the room after taking out his phone.

8. The next day, 16 October 2025, the Complainant raised the matter with Shirley Looney and Kellie Reid. He states that Ms Reid acknowledged his account was correct, and asked whether he wished to escalate the matter

3.2 Internal reporting and escalation (17–24 October 2025)

9. Between 15 and 17 October 2025, the Complainant sent three detailed written reports of the incident to his line manager, Shirley Looney.

10. On 21 October 2025, the Complainant confirmed he would attend a meeting scheduled for 22 October 2025. He asked that the matter be investigated formally by Apleona, with HR present, and that protective measures be put in place, since he continued to have visual contact with Denise Doyle and Roy Ybanez during his shift.

11. On 22 October 2025, before that meeting took place, the Complainant copied Abbott's on-site HR contacts and Apleona's recruitment team into his correspondence. He again asked that the matter be handled with HR involvement.

12. When the Complainant attended the meeting at 16:00 that day, he was told it would not go ahead because no HR representative was present. No later meeting on this matter was ever attended in person by an HR representative, despite the Complainant's repeated requests. That same day, he said he would now raise a formal grievance.

13. That same day, Úna Bartley, HR Business Partner for Apleona, wrote to the Complainant. She said his e-mail was a breach of confidentiality under the Code of Conduct and Disciplinary Procedure and stated that such conduct "can result in formal action up to and including dismissal". This warning came within days of his original complaint and his stated wish to raise a formal grievance.

14. On 23 October 2025, the Complainant sent a formal whistleblowing report to Apleona's central Compliance team in Germany, describing the incident as workplace intimidation. Apleona's Compliance Manager replied that the team "cannot assist in that specific matter" and forwarded the report elsewhere.

15. On 24 October 2025, the Complainant submitted a Formal Grievance Form. It gave a detailed, timed account of the incident and named the witnesses available to him.

3.3 The grievance investigation and outcome (November 2025)

16. A grievance hearing took place on 6 November 2025 at 16:00, with Marcela Moise as the appointed investigator — before the start of the Complainant's shift at 18:00. Denise Doyle and Roy Ybanez were interviewed separately on 13 November 2025.

17. The Investigation Outcome Report, dated 18 November 2025, recorded conflicting accounts. It concluded that the Complainant's grievance was not well-founded, described him as having been "caught" failing to complete his duties, and recommended mediation between him and Roy Ybanez. The report made no finding on the Complainant's central allegation — that he had been physically prevented from leaving the room.

18. By letter dated 20 November 2025, the Respondent confirmed the grievance was not upheld and advised the Complainant of his right to appeal.

3.4 Certified sick leave (21 November – 15 December 2025)

19. On 21 November 2025, the Complainant submitted a medical certificate confirming he was unfit for work due to anxiety and work-related stress. It initially covered 21 November to 5 December 2025, and was later extended to 15 December 2025.

20. During this certified leave, the Complainant was criticised for not telephoning to report his absence. He had explained that his medical condition made phone calls difficult, and he communicated in writing throughout.

21. The Respondent also required the Complainant to attend an Occupational Health assessment. Before attending, he raised concerns about the scope and purpose of the referral. He also noted a conflict: an informal verbal indication from Occupational Health said he was fit for work, while his own GP said, at the same time, that he needed ongoing anxiety treatment and a psychiatric referral.

3.5 The appeal (29 November – 22 December 2025)

22. On 29 November 2025, the Complainant submitted a detailed formal appeal with thirteen separate grounds. These included: contradictions in the investigation's account of his meeting attendance; an inaccurate account of the 15 October interaction; a failure to investigate his claim that he was prevented from leaving the room; acceptance of unverified statements while his own account was discounted; a disproportionate response to a first-time, minor infraction; and no consideration of CCTV evidence, independent witnesses, or the emotional and linguistic context of the incident.

23. Before the appeal hearing, on 9 December 2025, the Complainant explained in writing that he could not confirm attendance until he had reviewed the written Occupational Health report. He pointed to the conflict between the informal verbal "fit for work" indication and his GP's assessment, and asked, in effect, for the hearing to be deferred until this was clarified. The Respondent did not agree to postpone. It confirmed the hearing would go ahead as scheduled and said the Complainant could instead make a written submission in his absence.

24. Donna Barry was appointed to hear the appeal, which took place on 11 December 2025 at 15:30 — again before the start of the Complainant's shift. A Portuguese-speaking support person helped with translation at this hearing. The Complainant notes that no similar language support was offered at any earlier stage — not during the incident itself, and not during the grievance investigation meeting on 6 November 2025. He attended the appeal hearing despite his ongoing anxiety symptoms and his unresolved request about the Occupational Health report.

25. By letter dated 22 December 2025, the Respondent confirmed the appeal was not upheld, and that the original grievance outcome would stand.

3.6 Termination of employment (18 December 2025)

26. On 18 December 2025 — four days before the appeal outcome letter was issued on 22 December 2025, and while the appeal was, by the Respondent's own timeline, still ongoing — the Respondent issued a letter terminating the Complainant's probation and his employment, with immediate effect. It cited poor work performance.

27. The Complainant relies, in particular, on Ms Bartley's own words on that same day, 18 December 2025, when forwarding the termination letter: "Once I have an outcome of your appeal I will update you." The Complainant says this confirms, in the Respondent's own contemporaneous correspondence, that his employment was terminated before his appeal had been decided.

28. A second letter, also dated 18 December 2025, was issued by a different manager, Sandra Casey. It cited poor work performance and poor attendance, and referred to performance standards for a "Chef" — a role the Complainant never held.

This suggests the letter was not prepared with individual care.

29. The Complainant says the 'poor attendance' reason in this second letter is contradicted by the record of the days just before it. On 15 December 2025, Ms Casey asked him by e-mail to confirm his return to work. He confirmed, in writing, that he would return on 16 December 2025 at 18:00 (Doc 24). He duly attended but was asked to leave and await further contact. When he asked why, on 17 December 2025, Ms Casey explained that his confirmation e-mail had arrived too late — she does not work on Tuesdays — and that cover had already been arranged for that shift. Despite this, a handwritten internal note dated 16 December 2025 states that the Complainant "failed to contact Shirley or Sandra" about his return from sick leave. This is inconsistent with his written confirmation. The Complainant says this shows a pattern, in the days just before his dismissal, of internal notes wrongly attributing fault to him despite his having followed the correct notification steps.

30. That same day, the Complainant wrote to the Respondent acknowledging the termination letter. He noted, formally, that his employment ended while his grievance appeal was still ongoing and before any outcome had been communicated to him; that it came shortly after certified sick leave for work-related stress; and that it followed the Respondent's earlier written warning that contacting the client site could lead to dismissal. He reserved his rights.

31. The Complainant's final payslip, dated 26 December 2025, confirmed an outstanding annual leave balance of 43.40 hours, to be paid on termination. He says this accrued leave balance does not fit with the second termination letter's stated reason of 'poor attendance'.

32. The termination letter of 18 December 2025 said one week's notice pay would be included in his final pay. This was not processed at the time. After repeated queries to Payroll, the payment was authorised by Ms Bartley only on 15 January 2026 — about four weeks after termination — and was not issued until 23 January 2026.

33. As a direct result of losing his job, the Complainant could no longer afford to remain in Ireland and was required to leave the country.

4. The Discrimination Complaint (CA-00078846-001)

4.1 Ground one: national and ethnic origin

34. The Complainant relies on his national and ethnic origin — Brazilian — as one ground of discrimination in this complaint, together with the fact that English is not his first language. He notes that he also holds Portuguese (EU) citizenship and worked in Ireland on that basis. His ethnic and national origin, however, remains Brazilian. It is this origin, and its link to limited English proficiency, that he relies on.

35. The Complainant says that being a foreign national and non-native English speaker made him a target for the treatment described in Section 3. He says this treatment, and what followed, was significantly more distressing for him than it would have been for an Irish national or a native English speaker in the same position.

36. The Complainant further says that, while a Portuguese-speaking interpreter assisted at the appeal hearing itself, this context — being a foreign national and non-native English speaker — was not addressed in the substance of either the grievance investigation outcome or the appeal outcome, even though he raised it directly in his appeal of 29 November 2025.

4.2 Ground two: disability

37. The Complainant further relies on disability as a ground of discrimination, namely his diagnosed anxiety and work-related stress, certified by his GP from 21 November 2025 and extended to 15 December 2025.

38. The Complainant says that, during the Occupational Health assessment arranged by the Respondent, the assessing doctor questioned whether the Complainant expected to remain working for the Respondent, suggested the matter be resolved with his employer before the end of the year, did not engage with the anxiolytic medication prescribed to him, and concluded he was fit for work notwithstanding his GP's contrary, contemporaneous assessment and his certified leave. The Complainant recorded these observations in writing to himself immediately after the consultation, on 9 December 2025. The Complainant says this raises a serious question as to whether the assessment was directed at his medical fitness at all, rather than at managing his employment status.

39. The Complainant further says that the days he was certified as unfit for work due to this disability were subsequently counted against him as "poor attendance" in the probation review that preceded his dismissal, and were relied upon, together with a period of pre-approved annual leave, as part of the justification for terminating his employment.

40. The Complainant says that treating certified sick leave, taken because of a disability, as a performance or attendance failing justifying dismissal, is itself directly connected to that disability, and that the Respondent at no stage considered any reasonable accommodation in light of his condition.

41. Under section 85A of the Employment Equality Act 1998, once a complainant establishes facts from which discrimination may be presumed, on either ground, the burden shifts to the respondent to prove there was no infringement of the principle of equal treatment (Southern Health Board v Mitchell [2001] ELR 201; Apleona Ireland Ltd v Forro, EDA2470, 19 December 2024).

5. The Penalisation Complaint (CA-00078846-002)

42. The Complainant says he was penalised for making complaints in good faith about the conduct described in Section 3, and for pursuing the internal grievance and appeal procedures available to him.

43. The chronology above shows this sequence: (a) the Complainant made a formal complaint on 15 October 2025; (b) he was warned in writing on 22 October 2025 that taking his complaint further could lead to disciplinary action "up to and including dismissal"; (c) he nonetheless pursued a formal grievance  and, after it was rejected, a detailed formal appeal; and (d) his employment was terminated on 18 December 2025, before the appeal had concluded and before any outcome had been communicated to him.

44. The Complainant says this sequence, taken as a whole, supports the conclusion that his termination was connected to, and a consequence of, having made and maintained this complaint — rather than being genuinely and solely about performance or attendance.

45. The Complainant also relies on the inconsistency between the two termination letters issued on the same date. They give different reasons and contain an evident drafting error. This suggests the decision was not properly or individually considered.

6. Redress Sought

• Financial compensation in respect of the discrimination complaint (CA-00078846-001).

• Financial compensation in respect of the penalisation complaint (CA-00078846-002).

• The Complainant does not seek reinstatement or re-engagement.

The Complainant also appended a number of documents which were referred to in his submission and in his evidence. The Complainant represented himself and gave his evidence with the assistance of an Interpreter. The Complainant gave evidence on oath and an oath was taken by the Interpreter.

Detailed written submissions were delivered on behalf of the Respondent which included the following:

PRELIMINARY OBJECTIONS

1. CA-00078846-001

Discrimination: “I was dismissed for adiscriminatory reason or foropposing discrimination.”

1.1 The WRC complaint form refers to work-related stress said to amount to a disability.

1.2 The Respondent objects to the hearing of any complaint advanced on the disability ground. The Respondent is not on notice of any disability affecting the Complainant. The

Occupational Health evidence expressly confirms that the Complainant had no underlying medical condition preventing a return to work, was fit to return to work from 10 December 2025, was fit to carry out his duties and engage with the Respondent and required no workplace adjustments.

1.3 At no stage prior to the termination of the Complainant’s employment, was the Respondent on notice that the Complainant suffered from any disability as defined under

section 2 of the EEA. No such disclosure was made during the recruitment or onboarding process, nor was any medical documentation or other evidence furnished by the

Complainant indicating the presence of a condition that might constitute a disability under the EEA.

1.4 In circumstances where an employer is not, and could not reasonably be, on notice of any disability, subsequent employment actions cannot be deemed discriminatory

within the meaning of the EEA. The Respondent refers to and relies upon the relevant case law authorities cited in the accompanying Legal Submissions, which confirm that an employer’s knowledge (actual or constructive) of a disability is a necessary precondition for a finding of discrimination on this ground.

1.5 The complaint amounts to dissatisfaction with performance management, the handling of internal procedures and the decision to terminate employment. Even if such complaints

were capable of being established, which is denied, they do not constitute discrimination absent evidence that the treatment complained of occurred because of a protected

characteristic.

1.6 The Respondent acted solely on grounds of suitability during the probationary period. The Respondent accordingly submits that the Complainant has failed to identify a clear protected ground, failed to establish any factual nexus between the alleged treatment and a

protected characteristic and failed to establish primary facts from which discrimination could reasonably be inferred. The complaint therefore fails at the first stage of the statutory burden of proof and should be dismissed.

2. CA-00078846-002

Penalisation

“I was victimised for taking an action set out in Section 74 of the Employment Equality Acts.”

1.7 The Respondent further submits, as a preliminary matter, that the complaint of victimisation and/or penalisation is not properly before the Adjudication Officer and should be dismissed. The Complainant has failed to identify any protected act within the meaning of Section 74 EEA which such a claim might be grounded.

1.8 It is established that, in order to establish a prima facie case of victimisation, a complainant must demonstrate:

(i) that he engaged in a protected act;

(ii) that he was subjected to adverse treatment; and

(iii) that the adverse treatment occurred as a reaction to the protected act.

The Complainant has failed at the first hurdle. The complaint identifies no equality complaint, assertion of rights under the EEA or participation in equality proceedings, or other protected act capable of engaging the statutory provisions on victimisation.

1.9 No facts are identified from which it could reasonably be inferred that the Respondent's actions were taken in reaction to the exercise of rights under the EEA.

1.10 The Respondent therefore submits that the complaint discloses no prima facie case of victimisation or penalisation.

FACTUAL SUBMISSIONS

2 BACKGROUND

2.1 On 18 August 20225, the Complainant commenced employment with the Respondent as a Cleaning Operative. The Complainant was contracted for 39 hours per week at €15 per hour.

2.2 During probation, concerns arose regarding the Complainant’s performance, including failure to complete cleaning duties, failure to return equipment, and failure to complete the work assigned to him.

2.3 On 14 October 2025, Mr Roy Ybanez (Cleaning Operative) entered the canteen and saw the vacuum left in the middle of the floor while the Complainant was playing pool with another cleaner. When Mr Ybanez later went to wash the canteen floor, it had not been vacuumed as required by the Complainant and the dustpan had been left out. Mr Ybanez reported this to Ms Denise Doyle, (Relief Cleaning Supervisor).

2.4 Ms Doyle stated that Mr Ybanez raised concerns with her regarding the Complainant not vacuuming properly, not putting equipment away and playing pool during working time. Ms Doyle spoke to the Complainant in the canteen and instructed him not to play pool and to return to his work. She later found him in the common area when he should have been working and again asked him to return to his duties.

2.5 Later that evening, Ms Doyle asked the Complainant to attend the office to address the matter the following date. On 16 October the Complainant entered the meeting room with his phone in his hand, Ms Doyle asked him to put his phone away and reminded him that if he was recording, that this was prohibited. When he refused, she went to the door and stated that she was going to call security. Ms Doyle stated that the Complainant then left the room.

2.6 Mr Ybanez also stated that the Complainant entered the office with his phone out, that Ms Doyle asked him to put it away, and that she told him he could not record people and could face disciplinary action for doing so. Mr Ybanez stated that Ms Doyle went to the door to call security, the Complainant left, and Mr Ybanez returned to work.

Initial complaint

2.7 On 17 October 2025, the Complainant emailed Ms Shirley Looney (Senior Cleaning Supervisor) to report the incident. In that email he accepted that he had played pool and that a broom had been left in the canteen, but stated that these were first-time issues, that he had apologised, and that he considered the response disproportionate.

2.8 Ms Looney invited the Complainant to attend a meeting on 22 October 2025 to discuss the matter. The Complainant emailed Ms Looney and copied representatives of Apleona and Abbott, stating that he would only attend the scheduled meeting if HR was present. Ms Sandra Casey (Line Manager)

responded that Abbott HR did not deal with Apleona matters, copied in Úna Bartley of Apleona HR, reminded the Complainant that allegations were confidential, and set out the formal grievance process.

2.9 On 23 October 2025, the Respondent issued a grievance options letter, setting out informal and formal routes. On 24 October 2025, the Complainant confirmed that he wished to proceed formally and submitted his grievance statement. On 28 October 2025, Ms Bartley asked him to identify witnesses. The Complainant identified unnamed Abbott employees, one Apleona colleague, Mihail Ciubuc, and referred to Ms Looney and Justina as present on 16 October 2025.

Grievance investigation

2.10 The Complainant was invited to a grievance investigation hearing. The invitation identified his allegations regarding the 15 October 2025 canteen and office interactions, including alleged aggressive conduct by Mr Ybanez, an alleged threat of dismissal by Ms Doyle, the calling of security, and the allegation that Ms Doyle blocked him from leaving. The invitation confirmed his right to bring relevant information and to be accompanied.

2.11 On the 6 November 2025, the grievance hearing took place via Teams. The meeting was conducted by Marcela-Cecilia Moise (Associate Director) with Elza D’Aloia as note taker. The Complainant attended without representation and confirmed that he was happy to proceed. He confirmed that his complaint related to both Ms Doyle and Mr Ybanez.

2.12 Mr Ybanez submitted a witness statement dated 7 November 2025. He stated that the Complainant was required to vacuum the canteen before he washed the floor, that the Complainant repeatedly left equipment out, and that the Complainant had been playing pool during working hours instead of completing his duties. He further stated that, during the office interaction, the Complainant had his phone out, Ms Doyle told him to stop recording, Ms Doyle went to call security, and the Complainant left.

2.13 Ms Doyle submitted a witness statement dated 10 November 2025 and attended an investigation meeting on 13 November 2025. She stated that she had worked at the site for 27 years, had not previously been in a similar situation, and that she spoke to the Complainant because Mr Ybanez had reported that he was playing pool and not completing his work. She stated that the Complainant came to the office with his phone in his hand, that she believed he was recording, and that when asked if he was recording, he replied that it was none of her business, this is when she proceeded to the door and threatened to call security, when the Complainant exited the room. Ms Doyle denies in the strongest possible terms that she blocked or attempted to block the Complainant from exiting the room.

Grievance outcome

2.14 The grievance outcome report recorded that the investigation was authorised by Úna Bartley and conducted by Marcela Moise. The report recorded that the Complainant, Mr Ybanez and Ms Doyle were interviewed, and that the terms of reference were to determine, on the balance of probabilities, whether there were real grounds for the grievance.

2.15 The report recorded the Respondent’s evidence that the allegations arose after the Complainant was challenged about not completing his duties and playing pool while working. It recorded that Ms Doyle and Mr Ybanez denied the Complainant’s allegations, and that Mr Ybanez stated nobody said the Complainant would be fired.

2.16 The report recorded, as facts established, that the Complainant was playing pool while at work, failed to complete his duties, was challenged by Mr Ybanez, and that Mr Ybanez reported the matter to Ms Doyle, who also challenged the Complainant. It further recorded that local management attempted to investigate or address the matter once raised, and that the Complainant did not engage with the Site Manager to discuss the allegations.

2.17 The report recommended mediation between the Complainant and Mr Ybanez, that Ms Doyle adopt a more formal approach when addressing non-conformance, and that reminders issue to the team regarding policies, procedures, chain of command and escalation.

2.18 On 20 November 2025), the Respondent confirmed by letter that the Complainant’s grievance was not upheld and enclosed a copy of the report. The letter advised him of his right of appeal by 1 December 2025 and referred him to the Respondent’s Employee Assistance Programme.

Sick leave and occupational health

2.19 On 21 November 2025, the Complainant notified the Respondent that he was unfit for work and provided a sick certificate from 21 November to 5 December 2025 citing that the Complainant was suffering from “a medical illness”. The Respondent acknowledged receipt of the certificate, reminded the Complainant of the requirement under the Absence Management Policy to notify absence by phone, and arranged an Occupational Health referral as part of its duty of care. The Respondent also confirmed that the Complainant’s probation would be paused during certified sick leave and that a probation review meeting would be arranged once he was fit to return.

Appeal against grievance outcome

2.20 On 29 November 2025, the Complainant appealed the grievance outcome. His appeal challenged the fairness of the investigation, the account of the 15 October 2025 incident, the treatment of the alleged recording issue, the allegation that he was prevented from leaving, the reliance on statements from other employees, the response to his contact with Abbott HR, and the handling of his certified medical leave.

2.21 The Occupational Health assessment took place on 9 December 2025, with the report issued on 10 December 2025. The report confirmed that there was no underlying medical condition preventing a return to work, that the Complainant was fit to return from 10 December 2025, fit to carry out his duties, fit to engage with the Respondent, and that no adjustments were required.

2.22 The Respondent acknowledged the appeal and appointed Donna Barry (Associate Director) as appeal manager. The appeal hearing took place on 11 December 2025 via Teams, with Elza D’Aloia as note taker. The Complainant attended without representation and confirmed that he was happy to proceed. At the hearing, Ms Barry explained that the appeal was not a rehearing of the original incident, but a review of the grounds on which the Complainant sought to challenge the grievance outcome.

2.23 Following receipt of the Occupational Health report confirming the Complainant’s fitness to return and engage, the Respondent invited the Complainant to a probation review meeting on 18 December 2025. The invitation confirmed that the purpose of the meeting was to review his

performance and suitability for the Cleaning Operative role, and that the possible outcomes included confirmation of employment, extension of probation, or termination.

2.24 On 18 December 2025, the Respondent confirmed that the Complainant’s probationary period and employment were terminated with immediate effect. The letter stated that the decision was due to poor work performance, the needs of the business, and the Complainant not meeting the performance standards required for the role. The Respondent confirmed that any monies owed, including one week’s notice, would be paid in the final payslip.

Appeal outcome

2.25 On 22 December 2025, the Respondent confirmed that the appeal was not upheld. Ms Barry recorded that she had considered the Complainant’s written appeal, the original grievance outcome, the notes and evidence gathered during the investigation, and the Complainant’s representations at the appeal hearing.

2.26 Ms Barry concluded that the original grievance investigation had been conducted in accordance with the Respondent’s procedures, that the Complainant had been given an opportunity to present his account, and that the findings were reasonable and supported by the evidence available. No new evidence was identified which warranted a change to the original outcome.

LEGAL SUBMISSIONS

3 CA-00078846-001: DISCRIMINATION

BURDEN OF PROOF

3.1 The Respondent does not accept that the Complainant can discharge the burden of proof that falls upon him by simply asserting himself as being a person with a disability.

3.2 In order to pursue a claim under the EEA, the Complainant must establish a prima facie case and establish in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. It is the Respondent’s case that the Complainant has failed to establish the existence of a prima facie case in accordance with Section 85A (1) of the EEA which provides as follows:

3.3 “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.”

3.4 The Labour Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 –considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

3.5 “The first requirement…is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

3.6 It follows that the Complainant has to establish both the primary facts upon which he relies and also that those facts are of sufficient significance to raise an inference of discrimination.

3.7 The factual circumstances and documentation before the Adjudicator clearly demonstrate that the termination of employment was unrelated to any alleged disability and were based on that of performance. The Respondent acted solely on grounds of suitability during the probationary period.

As established in Melbury Developments Ltd v Valpeters [2010] ELR 64, a complainant must first establish a prima facie case of discrimination before the burden of proof shifts. In the absence of any medical or factual evidence supporting the claim, the Complainant has failed to discharge that initial burden.

Accordingly, the Respondent submits that the claim should be dismissed.

3.8 COMPARATOR

3.9 Without prejudice to the foregoing, no comparator evidence has been identified. In claims under the EEA, identifying a suitable comparator is crucial for establishing a prima facie case of discrimination. A comparator is defined as an individual or group lacking the relevant characteristic (in this instance, disability) who is or would be treated more favourably under comparable circumstances. The Complainant has not presented prima facie evidence that he was subjected to less favourable treatment than his colleagues.

3.10 Furthermore, there is no evidence indicating that if any differential treatment did occur, that it was motivated by discriminatory intent based on disability or any other protected ground under the EEA.

3.11 The Complainant's failure to identify a suitable comparator is a critical omission. Without a comparator treated more favourably in similar circumstances, it is impossible to establish a baseline for assessing discrimination.

3.12 The Respondent respectfully submits that the Complainant was not treated differently or less favourably than any other person would be in a comparable situation.

KNOWLEDGE

3.13 As noted, the Respondent submits it had no knowledge that the Complainant suffered from a disability nor has the Complainant adduced any evidence to the contrary. In such circumstances the Respondent cannot be deemed to have discriminated against him. In support of this position the Respondent relies on the Equality Tribunal’s decision in An Applicant v A Union (DEC-E2006-043, 12September 2006), which remains a key Irish authority on the issue of an employer’s knowledge of a disability. In that case, the complainant alleged that a trade union had discriminated against him on the disability ground in refusing membership and representation. The Equality Officer dismissed the claim, holding that, notwithstanding the complainant’s assertion that he had disclosed his condition, there was no evidence that the respondent was aware, or ought reasonably to have been aware, of any disability prior to the events complained of. Accordingly, where the respondent had no actual or constructive notice of a disability, any alleged difference in treatment could not constitute discrimination within the meaning of section 6(2)(g) of the EEA.

3.14 To that end it is submitted that there are no circumstances or facts giving rise to actual or constructive knowledge.

4 CA-00078846-002: PENALISATION

4.1 Under Section 74 of the EEA, victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to:

4.1.1 a complaint of discrimination made by the employee to the employer,

4.1.2 any proceedings by a complainant,

4.1.3 an employee having represented or otherwise supported a complainant,

4.1.4 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,

4.1.5 an employee having been a witness in any proceedings under this Act or the Equal Status

Act 2000 or any such repealed enactment,

4.1.6 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 under any such repealed enactment, or

4.1.7 an employee having given notice of an intention to take any of the actions mentioned in the

preceding paragraphs.

4.2 The Complainant must establish that the victimisation or adverse treatment suffered was due to, or in retaliation to a protected act. This has become known as the ‘but for’ test. Accordingly, the Complainant must be able to demonstrate that he would not have suffered the adverse treatment ‘butfor’ the fact that he raised a disability discrimination complaint by way of grievance.

4.3 The Complainant has patently failed to meet the test as set out above. As detailed throughout this submission, there were clear objective reasons as to why the Complainant was lawfully dismissed during probation, and these were entirely unrelated to any complaints or issues that the Complainant had raised.

4.4 Based on the foregoing, this claim is not well-founded.

The Respondent was represented by Ms. Montague Solicitor. Ms. Una Bartley the Respondent’s HR Business Partner was also present and made an affirmation. However, her evidence was limited to the provision of clarifications in relation to the documentation including a document dated the 2nd of December 2025 where she provided the occupation health doctor with briefing material regarding the reasons for the Complainant’s referral for occupational assessment. She also gave evidence regarding the dismissal letter dated the 18th of December 2025. 

The Basis of the Claims Made

I noted that the submission contained in the initiating document, the WRC Complaint form delivered on the 19th of December 2025 did not clearly identify which of the grounds provided for in the EEA was being relied upon. This being the case I asked the Complainant at the outset of the hearing to identify the ground relied upon and he confirmed, with the assistance of the Interpreter, that the only ground relied upon was disability.

In addition to the claims made alleging discriminatory dismissal and victimisation on the disability ground the Complainant, in his written submissions delivered on the 27th of July 2026, outlined the following as one of the grounds of his claim:

“4.1 Ground one: national and ethnic origin

34. The Complainant relies on his national and ethnic origin — Brazilian — as one ground of discrimination in this complaint, together with the fact that English is not his first language. He notes that he also holds Portuguese (EU) citizenship and worked in Ireland on that basis. His ethnic and national origin, however, remains Brazilian. It is this origin, and its link to limited English proficiency, that he relies on.

35. The Complainant says that being a foreign national and non-native English speaker made him a target for the treatment described in Section 3. He says this treatment, and what followed, was significantly more distressing for him than it would have been for an Irish national or a native English speaker in the same position.

36. The Complainant further says that, while a Portuguese-speaking interpreter assisted at the appeal hearing itself, this context — being a foreign national and non-native English speaker — was not addressed in the substance of either the grievance investigation outcome or the appeal outcome, even though he raised it directly in his appeal of 29 November 2025.”

I am precluded from considering this claim because the ground relied upon by the Complainant was restricted to the disability ground alone. I would add that several other procedural and substantive complaints raised by the Complainant in his submissions and evidence fall outside the ambit of his claim which is limited to disability discrimination pursuant to the EEA.

Section 2 (1) of the EEA defines disability as:

(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 judgment 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;

As can be ascertained from judgements of the European Court of Justice in cases such as  Sonia Chacón Navas v Eurest Colectividades SA Case C-13/05 - [2006] ECR I-06467, there is a clear distinction between “disability” and “sickness”. Under the General Framework Directive (2000/78/EC of November 27, 2000 establishing a general framework for equal treatment in employment and occupation), “disability” attracts protection whereas “sickness” does not.

In A Government Department v. A Worker EDA094 (decided in 2009) the Labour Court in construing the definition considered the possible implications of an overly literal interpretation of the definition which might produce an absurd result:

“…the Respondent argued that a strictly literal interpretation of the statutory definition would produce the result that mere unhappiness or ordinary stress or disappointment which effects a person’s emotions would have to be classified as a disability. This, it was submitted, would be an absurd result. There is considerable cogency in that argument….

…It would appear to the Court that if the statute were to be construed so as to blur the distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other, it could be fairly described as an absurdity.”

In Swan O’Sullivan v Counihan EDA1810  (decided in 2018) the Labour Court commented further on the definition as follows:

“This is a broad definition which can encompass any injury or illness whether it is temporary or permanent, curable or incurable. However, it is to be assumed that the Oireachtas did not intend that every injury no matter how minor, nor every short-term illness that may inevitably occur in the course of normal living, can be classified as a disability. It is a question of degree, and in particular the extent to which the condition may hinder the full and effective participation of the person concerned in professional or working life on an equal basis with other workers.”

In addition to establishing the existence of a disability, an employee who makes a claim for discrimination on the disability ground including discriminatory dismissal and victimisation, must establish that the employer was or ought to have been aware of the disability before any claim of discrimination on the disability ground can arise.

Again, in Swan O’Sullivan v Counihan the Labour Court stated:

“…before an employer can be answerable for disability discrimination against an employee, the employer must have actual or constructive knowledge that the employee was a disabled person. The knowledge need not be of a diagnosed condition or disorder constituting a disability within the statutory meaning but to material facts which could reasonably indicate the existence of such a condition or disorder.”

Victimisation is defined in Section 74 subsection (2) as follows:

“(2) 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,

(c) an employee having represented or otherwise supported 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 under 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.”

Section 85A of the Acts makes specific provision in relation to the burden of proof in Discrimination Claims

Section 85A (1) of the Acts states that:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

Evidence and Submissions

In the present case the Complainant asserted that he had a disability which was communicated to the Respondent and that being the case he relied on several issues where he alleged discriminatory treatment and victimisation resulting in his dismissal.  However, because the ground relied upon is disability a more fundamental issues arises which must be considered before any issues of discriminatory treatment leading to or taking the form of dismissal can be considered because the Respondent cannot be deemed to have discriminated if there was no disability and/or if it was not made aware of any alleged disability. The other issues raised by the Complainant of alleged discriminatory treatment and victimisation resulting in his dismissal do not fall to be considered at all unless the Complainant can establish proof that he had a disability at the material time and that the Respondent was made aware or ought to have been aware of that disability. Accordingly, the issue of whether there was a disability and if so whether the Respondent knew or ought to have known about it, must be considered first.

It was accepted by both parties that the first indication which the Respondent had of a possibility that the Complainant may have had a disability was when the Complainant submitted a medical certificate citing “anxiety/work-related stress” as the reason for his inability to attend work. This medical certificate was submitted on the 21st of November 2025.

The Respondent arranged an appointment for the Complainant with Optima Health for the purposes of independent medical assessment. The Complainant requested information regarding the terms of reference of the occupational assessment, but he did not receive a reply. On my request Ms. Bartley submitted the document. The referral briefing dated the 2nd of December 2025 stated “Reason for Referral: Possible work-related health problem. Marco is still on probation and has sent in a sick note stating work related anxiety / stress. He raised a grievance against his line manager after his line manager raised concerns about his performance, the grievance was not upheld. We have performance related issues with him”.

The Complainant in his evidence and submissions, referred to several email exchanges between himself and Ms. Bartley on the 8th, 9th and 10th of December 2025. These were appended to the Complainant’s submissions (albeit that they were not listed sequentially). I considered the emails in the course of the Complainant’s evidence, following which I arranged them in date order myself and (excluding greetings) they are as follows: 

On the 8th December 2025 at 14:34 the Complainant emailed Ms. Bartley as follows:

“Following medical review today, my sick leave has been extended until 15 December due to ongoing stress symptoms.

I will forward the updated certificate shortly.”

On the day of the occupational health assessment, the 9th of December 2025, the following emails were exchanged :

At 12:26 Ms. Bartley emailed the complainant:

I am emailing on behalf of Donna Barry who has been appointed to be your appeal hearing manager. This meeting will be conducted online via Teams link below.

If this date and time do not suit, please suggest an alternative. If we do not hear from you by 3pm Wednesday 10th, we will assume your attendance.

Please note, that all appeals must be carried out in a timely manner.

Attached our grievance / disciplinary policies and EAP.”

at 13:59 the Complainant replied to Ms. Bartley as follows:

“Thank you for your email.

Before I can confirm attendance, I need to raise one important point:

The Occupational Health doctor verbally stated that I am fit for work, but this conflicts with my GP, who examined me in person and signed me off as medically unfit with Escitalopram and prescribed Xanax for panic episodes.

Given this conflicting medical advice, I need to review the written OH report before progressing with an appeal hearing.

Once I receive the report and discuss it with my GP, I will be able to confirm availability.”

At 14:34 Ms. Bartley emailed the Complainant as follows:

“Your email yesterday, 8th December, confirmed you had a medical review, and your sick leave is now up to 15th December due to ongoing stress related symptoms. As previously advised to you on 24th November, while you remain on certified sick leave, your probationary period is paused and will remain so until you are deemed fit to return to work, at which point a probation review meeting will be arranged. As per your email earlier today, you stated you attended our OH appointment and are deemed ‘Fit for Work’ by our occupational health.

Your most recent medical certificate expired yesterday, 5th December. As of today, we are not yet in receipt of an updated medical certificate to cover your absence from 6th December 2025 onwards. In line with company policy, this period is currently being recorded as unauthorised absence.

You are now required to attend a probation review meeting and an invitation will be sent out later this week.

Attached are our EAP, sick leave policy and disciplinary policy.”

At 15:44 the Complainant replied to Ms. Bartley as follows:

“Thank you for your email.

Please note that my updated medical certificate covering the period from 8th December is now available and attached for your records.

I kindly request that this period be adjusted from “unauthorised absence” pending receipt of this documentation.

I remain committed to cooperating with the process and available for any further clarification.”

Two minutes later at (15:46) Ms. Bartley replied:

“I would like to ring this clinic to confirm this certificate. I will not be asking for any medical information.”

The Complainant replied at 16:02 as follows:

“Thank you for letting me know.

Please feel free to contact the clinic to confirm the certificate.

If they require any reference number or additional verification from me, please let me know and I will provide it.

As previously stated, I am cooperating fully and I trust that my situation will be handled fairly in line with company

policy and with consideration for my current health circumstances.”

At 16:13 Ms. Bartley emailed the Complainant as follows:

“As per your email below, our occupational health provider advised you, that you are fit for work.

Under our company sick leave policy and the principles of natural justice, if you are stating that you are not medically fit to engage in a workplace process, this position must be supported by appropriate medical certification. At present, no medical certification has been received confirming that you are unfit to participate in the appeal process.

The appeal hearing is scheduled to take place online and does not require you to attend site or be medically fit to carry out work duties. Accordingly, the appeal hearing remains scheduled. If you fail to attend without the provision of valid medical certification substantiating that you are unfit to engage, the company reserves the right to proceed with the appeal in your absence and to issue a decision based on the information available, in line with the disciplinary procedure.”

Later that evening at 19:12 the Complainant emailed Ms. Bartley as follows:

“Just to update you — my GP has confirmed ongoing treatment for anxiety and has now recommended referral to a psychiatrist, which is currently being arranged.

The clinic also advised that it may be beneficial if the employer contacts them directly should clarification be required.

Once I receive specialist medical guidance on my ability to safely participate in the appeal process, I will provide you with an update.”

On the 10th of December 2025 the following exchanges took place:                            

At 13:08 Ms. Bartley emailed the Complainant as follows:

“I confirm that I received your Occupational Health report this morning and have issued this to you separately via email. The report clearly confirms that you are, medically fit for work, and fit to engage with your employer.

On this basis, the appeal hearing will proceed as scheduled tomorrow at 3:30pm via teams link.

If you are unwilling or unable to attend the appeal hearing, you may submit a written submission in advance of the meeting for consideration.

Please note that failure to attend without valid medical justification may result in the appeal proceeding in your absence, and a decision being made based on the information available. “

The Occupational Health Assessment took place on the 9th of December 2025. In a report provided to the Respondent and copied to the Complainant, Dr. Sean Fitzpatrick, Occupational Health Physician of Optima Health, reported as follows:

“Reason for Assessment

Assessment of fitness to return to work.

Medical History and Diagnosis

Marco reports a perceived work-related issue.

Treatment

He has attended doctor 365 for support.

Relevant Occupational Factors

He denies any issue with his role. He reports a perceived work-related issue.

Functional Impact

He lives in shared accommodation.

I feel that a return to work is in Marco's best medical interests.

Recommendations and Employment Implications

1. Is there an underlying medical condition affecting this individual’s performance or attendance at work?

There is no underlying medical condition preventing a return to work.

2. What is a likely time frame for recovery and when would you expect a return to work?

Marco is medically fit to return to work on Wednesday the 10th of December.

3. Is further medical support or intervention suggested?

He should continue to engage with management.

I have advised him to avail of the EAP service if available.

4. Is s/he fit to carry out their duties? If not fit outline why?

Yes, medically fit for work.

5. Is the employee fit to engage with the employer?

Yes, fit to engage with his employer.

6.What adjustments to the work tasks or environment may help to facilitate rehabilitation or an early return to work?

Nil adjustments required.

7. Is the health problem likely to recur or affect future attendance?

There is no underlying medical condition.

Follow Up

Does not require routine occupational health review unless requested”

The Complainant said in evidence that when he attended the medical appointment, he was surprised at the way in which the occupational health consultation went. The doctor, he said, appeared more interested in asking him a series of questions and did not seem to have any concerns for his health. The Complainant sent an email to himself on the day of the consultation as follows:

“Doctor disagreed with GP

✔ Doctor disagreed with GP

✔ Minimized medication timeline

✔ Ignored anxiolytic prescription

✔ Suggested resolving with employer before year end

✔ Asked if I expect to remain working there

✔ Did not acknowledge impact of anxiety

✔ Concluded fit despite sick cert and treatment”

This document was not sent to the Respondent, but the Complainant said it represented his own note of the issues which he had with the way in which the consultation was conducted.

Having received the Report, the Complainant replied at 14:50 that same day to Ms. Bartley’s earlier email as follows:

“Thank you for your email and for issuing the Occupational Health report.

I will attend the appeal hearing tomorrow at 3:30pm as scheduled.

For clarity, my GP continues to manage my anxiety-related symptoms, so while I will participate, I may need pauses or clarification during the meeting and I may not be able to verbally express everything fully.

I will do my best to engage.”

The Complainant contended that he had requested an adjournment of the Grievance appeal meeting and even if he did not used the word adjournment or postponement, the need for an adjournment should have been clear to the Respondent and the meeting should have been adjourned. He did not provide a certificate to say that he was not well enough to attend but he did state that he was going to consult his doctor. He did not have the time to see his doctor. A factor in the Complainant’s decision to attend the meeting was that he wanted his grievances to be fully investigated but there was no investigation. As regards medical certification the Complainant said that he had already provided medical certification to say that he was unfit for work. He did not provide any further certification or medical documentation.

On the 16th of December 2025 the Complainant was invited to and attended a probation review meeting  as follows:

“I would like to invite you to attend your probationary review meeting, which will take place on Thursday, 18th December at 12noon via Teams.

The purpose of this meeting is to review your performance to date and your overall

suitability for the role of Cleaning Operative during your probationary period.

Please note that this meeting is an important stage of the probation process, and the

outcome may include confirmation of employment, an extension of probation, or

termination of employment.

You are entitled to be accompanied at this meeting by a work colleague or a trade union

representative.

Please do not hesitate to contact me if you have any queries in advance of this meeting.”

The Complainant attended the meeting which took place as scheduled, on the 18th of December 2025. The Complainant’s employment was terminated at the meeting as confirmed in a letter dated that day from Ms. Bartley which stated:

“Re: Unsuccessful Probationary Period

Following on from your meeting with your line manager earlier today, as you are aware,

when you started working with us, we had high hopes of you achieving the performance

standards required of a Clean Operative in Apleona Ireland limited. Unfortunately, due to poor work performance this has not proved to be the case.

As per your contract of employment we also reserve the right to terminate your

probationary period for any or no reason. After careful consideration, due to the needs of

the business, and, as you are not meeting the performance standards required within your role, we have decided to exercise this right. I now write to inform you that we are

terminating your probationary period and hence your contract of employment with the

Apleona Ireland limited with immediate effect.

Any monies owed to you will be paid in your final payslip including a weeks’ notice.

If you have any queries on the above, please contact me on the mobile number outlined

below.”

The Complainant said that he was dismissed on the 18th of December 2025 before the outcome of the Grievance Appeal was sent to him on the 22nd of December 2025.

The Complainant said that the entire process was too fast and that he had insufficient time to prepare and to consult with his doctor.

The Complainant also directed attention to a threat of dismissal which had been made by the Respondent prior to the submission of the medical certificate on the 24th of November 2025, which he alleged was penalisation.

The Complainant submitted that prior to getting ill because of work-related stress he did not get any warnings in relation to his attendance. He was told during his probation that he had too many absences, but he said that he submitted medical certificates for all his sickness-absences. However, he accepted that the first time work-related stress appeared on any certificate was on the 21st of November 2025. 

The Complainant submitted that he got two different versions of the dismissal letter dated the 18th of December 2025. Apart from the one exhibited by the Respondent, the Complainant got a letter from his line manager. The text was very similar to the one signed by Ms. Bartley except that the letter from his line manager referred to performance and attendance as the reasons for his not passing his probation whereas the letter relied upon by the Respondent only identified performance as the reason.

Regarding the referral briefing submitted in advance of the occupational health appointment, the Complainant accepted that the content of the briefing was fair, but he said the consultation itself was not fair.

As regards the dismissal letter and the other version sent by the Complainant’s line manager, Ms. Bartley explained that the letter sent by the line manager was incorrect and it referred to the Complainant’s duties as a chef case which was not a role he ever performed. The letter was incorrect and was effectively replaced by the correct one (as quoted above). Ms. Bartley stated that the sole reason for the dismissal was the Complainant’s poor performance.

The Respondent’s solicitor submitted that the facts and documents clearly demonstrated that the performance issues and the Complainant’s grievance arose prior to the dismissal. There is a distinction between ordinary stress such as stress which may arise as a result of an internal process and a disability. No medical evidence to substantiate the Complainant’s alleged disability was ever provided and the only evidence available was from the occupational health assessment. In summary it was contended that facts had not been established such as to raise an inference of discrimination for the purposes of Section 85/A.  

The Complainant submitted that his medical position was sufficiently communicated in his doctor’s certificate of the 21st of November 2025. All of his medical information was forwarded to the Respondent but even so, his absences were a factor in his dismissal. When he was seen by Optima Health, instead of asking about his health the doctor kept asking about the prescriptions he was getting. When meetings were arranged, he asked for them to be postponed to allow him to get advice from his doctor but this was not taken into consideration, and he felt compelled to attend.

Analysis and Findings

The medical evidence available is limited to the medical certificates and the occupational health report. The medical certificates certified the Complainant as unfit for work from the 21st of November initially to the 5th of December but subsequently up to the 15th of December 2025. However, the Occupational Health Report of the 10th of December 2025 declares the Complainant not only fit to work as of that date but also fit to engage with management. There is no further medical information from any source.

In the present case the occupational health physician’s opinion was the opposite of that offered by the Complainant’s treating doctor as expressed in his medical certification of the Complainant dated the 21st of November 2025. The occupational health report makes no reference to that certification or medical opinion. The discussion of Medical History and Diagnosis is limited to “Marco reports a perceived work-related issue.”  As to “Treatment”, all that is said is that the Complainant “has attended doctor 365 for support”. It is not clarified whether Dr. Fitzpatrick the author of the occupational health report (who did not give evidence), had any communication with the Complainant’s doctor.

The Complainant reacted to the medical opinion which had been conveyed verbally to him by Dr. Fitzpatrick, even before he received the latter’s report. On the 9th of December 2025 the Complainant emailed: “The Occupational Health doctor verbally stated that I am fit for work, but this conflicts with my GP, who examined me in person and signed me off as medically unfit with Escitalopram and prescribed Xanax for panic episodes” and later that same day: “my GP has confirmed ongoing treatment for anxiety and has now recommended referral to a psychiatrist, which is currently being arranged”. 

In such circumstances it is entirely understandable that the Complainant protested at the contradictions between Dr. Fitzpatrick’s findings and his doctor’s opinion. However, what is more difficult to understand is why the Complainant did not immediately consult with his doctor either that day or the next when he received the report, and why he did not provide any medical documentation to rebut or to question the opinion advanced in such clear and unequivocal terms by Dr. Fitzpatrick.

When the occupational health report was generated on the 10th of December 2025 the following was the factual position

1. The Complainant was certified unfit for work by his general practitioner due to “anxiety/work-related stress” until the 15th of December 2025. This was the extent of the medical information available directly from the Complainant’s doctor - as distinct from reports from the Complainant himself as to what his doctor had said or advised.
2. The Respondent’s medical information (which was shared with the Complainant) was that from the 10th of December 2025, the Complainant was fit for work without qualification, that he had no underlying medical condition, that he needed no accommodation measures to return to work, that he was fit to engage with management and that doing so was in his best interests.
3. Although the occupational health report made no mention of the phrase “anxiety/work-related stress” which was used by the Complainant’s doctors in the certification the Complainant did not provide any further communication of any sort directly from his own doctor.
4. Relying on that aspect of the occupational health report which certified the Complainant as fit to engage, the Respondent invited the Complainant to engage in a grievance appeal hearing on the 11th of December2025. The Complainant did not provide any further medical certification regarding his fitness or otherwise to engage in this meeting. He agreed to attend. He attended and he engaged in the meeting.
5. The Complainant’s certificate of unfitness for work expired on the 15th of December 2025. He provided no further medical information.
6. The Complainant was invited to a review of probation meeting on the 16th of December 2025.
7. The Complainant attended the review of probation meeting on the 18th of December 2025. He was dismissed at that meeting.
8. The Grievance Appeal outcome was issued to the Complainant on the 22nd of December 2025. 

I conclude that the use of the phrase “anxiety/work-related stress” in the Complainant’s medical certificates cannot in the circumstances of this case be construed as conclusively fixing the Respondent with actual notice of a disability in the circumstances where no further medical evidence was provided at the material time by the Complainant and where no medical evidence was called by the Complainant at the adjudication hearing.

I conclude that insofar as the use of the phrase “anxiety/work-related stress” in the Complainant’s medical certificates put the Respondent on enquiry of a possible disability, the Respondent acted appropriately by procuring an independent medical assessment of the Complainant. The outcome of the independent medical assessment declared the Complainant fit for work and to engage, as of the 10th of December 2025. The Respondent did not require the Complainant to return to work on that date, but the Respondent did invite the Complainant to engage in a Grievance Appeal meeting on the 11th of December 2025.  The Complainant did not provide any medical certification that he was unfit to attend and engage in this meeting. Although the Complainant’s case is that it should have been clear that he needed more time and the Respondent should have adjourned, I find as a fact that he did not formally request that the meeting be adjourned and he emailed to say: “I will attend the appeal hearing tomorrow at 3:30pm as scheduled.”  The notes of the meeting reflect that the Complainant engaged fully for the duration of the meeting which ran from 3:30 pm to 5pm.

The Respondent dismissed the Complainant on the 18th of December 2025 on which date the Complainant’s own medical certificate had expired and no further medical evidence was provided. I find that on that date, the best medical evidence available to the Respondent was the occupational health report dated the 10th of December 2025 which did not disclose any evidence of a disability and I further find that in the absence of any further medical evidence from the Complainant up to and including the 18th of December 2025 when he was dismissed, the Respondent was not on actual or constructive knowledge that the Complainant had a disability. Accordingly, I must find that the Complainant did not at the material time have a “disability” for the purposes of the EEA.

Given the finding made that the Respondent was not on notice that the Complainant had a disability it follows that the Complainant’s dismissal cannot be linked to any disability and it must also follow that the Respondent did not victimise the Complainant as a reaction to any action taken by the Complainant as provided for in Section 74(2) in relation to the disability ground.

As a result of this finding there is no possibility that the procedural unfairness issues which the Complainant has raised can be considered. Thus, even though it is arguable that the Complainant was put under undue pressure to attend the meetings on the 11th and 18th of December 2025, and it is also arguable that his dismissal arose, at least in part from his poor attendance record, these facts cannot be deemed to raise an inference of discrimination on the disability ground for the purposes of Section 85A since there is, as I have found, insufficient evidence of disability and/or of actual or constructive knowledge on the part of the Respondent of any disability. Such evidence is essential before any inference of discrimination on the disability ground can logically be inferred from the facts proven or asserted.  

In the circumstances I find that the Respondent did not discriminate against the Complainant.

I would like to note that when formulating his claim, the Complainant elected for a very specific cause of action which was tied to the concept of disability as that term is understood and interpreted. That claim has failed for want of sufficient medical evidence to establish the presence of a “disability” and to fix the Respondent with notice of the same.  Such evidence was not provided before the dismissal, and no medical evidence was called by the Complainant at the adjudication hearing.

It is apparent that the Complainant would have benefited from advice not only in relation to the claim which he made but also in relation to other issues which he sought to canvass. Those issues included a potential equality claim based on nationality which could not be entertained for the reasons set out above. Other issues were also raised internally by the Complainant and detailed in his submissions which could have been considered by reference to other legislation had such other legislation been invoked but because of the limited basis on which the present claim is formulated those issues could not be considered or ruled upon. The principles of fair procedures require that a respondent should only be required to answer the claim which is actually made and cannot be expected to respond to claims which should more properly have been made on another statutory footing, whether by way of an alternative ground provided for in the Employment Equality Act 1998 as amended, or pursuant to entirely separate employment legislation.

CA-00078846-001 - Complaint pursuant to section 77 of the Employment Equality Act, 1998 – 2015-

The Respondent did not discriminate against the Complainant

CA-00078846-002 Claim pursuant to Section 74 of the Employment Equality Act, 1998 – 2015.

The Respondent did not discriminate against the Complainant

Employment Equality Act 1998 – Section (2) (1) – “Disability” – Anxiety/Work-related Stress - Sonia Chacón Navas v Eurest Colectividades SA Case C-13/05 - [2006] ECR I-06467 - A Government Department v. A Worker EDA094 - Swan O’Sullivan v Counihan EDA1810 – Section 74 (2) – Section 85A – “Fitness to Engage”