Complainant

Respondent

Parties

Sharon  Byrne

Poundland Limited

Complainant

Respondent

Anonymised Parties

Representatives

Dajana Sinik,                                                    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-00064162-001

19/06/2024

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

In line with the coming into effect of the Workplace Relations (Miscellaneous Provisions) Act, 2021 on the 29th of July 2021, I can confirm that the witnesses herein were required to give their evidence on oath or affirmation. This was done in recognition of the fact that there may have been a serious and direct conflict in evidence between the parties to the complaint. It is noted that the giving of false statement or evidence is an offence.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 19th of June 2024. In general terms, I will therefore be looking at issues that have arisen in the six-month period directly preceding this date.

It is noted that after this matter was initially heard, and before a decision published, the Complainant communicated with the WRC indicating that she might try and compromise this matter directly with the Respondent. It is understood nothing came of that process.

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of all the evidence and submissions that I have considered. Any matter not specifically addressed is deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

The Complainant was not represented and made her own case. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an affirmation to tell the truth. The Complainant provided me with some documentation which assisted her case in the course of her evidence. The Complainant additionally relied on the submission set out in the Workplace Relations Complaint Form.  This read:

My manager said i was too slow to carry out specific jobs due to me having OCD, my hours were then cut and i feel i was treated unfairly because of my OCD.

No objection was raised to any of the material/documentation relied upon by the Complainant in making her case. The oral evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that she was discriminated against when she was told that she was being too slow in the performance of certain functions when her Employer knew or ought to have known that the Complainant had asserted that she had a mental health condition known as Obsessive Compulsive Disorder.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. The Complainant would need to show less favourable treatment than another person (a comparator) would be treated in a comparable situation on the ground that she had a disability where that other person did not.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent was represented by the business representative group known as IBEC. The Respondent was additionally represented by the Store Manager (TN) and a HR Business Partner (CG) both of whom had knowledge of the issues. The Respondent provided me with a written submission dated the 13th of March 2025. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent witnesses were available to be questioned by the Complainant.

The Respondent rejects that there has been any discrimination.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced in the course of this hearing. The Complainant came to work for the Respondent company in November of 2022. The Complainant worked very well under the then Store Manager (PT) who seemingly accepted that the Complainant had issues which might best be described as OCD, or Obsessive-Compulsive Disorder whichis a mental health condition characterized by obsessive and compulsive behaviour. The Complainant says that she always described herself in the workplace as OCD and that this meant that she was fastidious and exacting and that people should know this about her.

As I understand it someone with OCD might have obsessive thoughts about things needing to be aligned perfectly or arranged in a particular way for them to feel "right." These thoughts can create intense anxiety, and the person might feel compelled to repeatedly adjust or organize things until they feel visually perfect or "just so." Obsessive behaviour might involve a need for symmetry, order and aesthetic balance. The compulsions typically include arranging, straightening, or making sure objects are placed in a certain way. The visual obsession can be about making things "look right," and the person might feel distressed if things are out of place or look unorganized.

At the outset I must observe that I am concerned that the Complainant has described herself as having an Obsessive-Compulsive Disorder as a matter of fact. There is, to my mind, a considerable distance between having a clear neurodiverse diagnosis from an appropriate qualified medical practitioner and having those idiosyncratic traits which are perceived to fall within the OCD family.

The Complainant commenced her employment on a short-term Contract with the Respondent entity in November of 2022. After the Christmas period the Complainant was retained on a contract of indefinite duration. The Complainant had started out on the tills, but this role was worrisome for her as she was always anxious about the till coming up short at the end of a shift. This had happened to her early on in her employment (May of 2023) and the ensuing investigation caused her enormous stress she says.

The Complainant says that she had earlier in 2023 attended with her GP as part of her ongoing management of an unrelated post-traumatic stress disorder. A much later medical report notes that she was given a diagnosis of anxiety and of having symptoms suggestive of OCD. This finding was made as part of the ongoing (and unrelated) assessment and presumably this finding was based on whatever symptoms that the Complainant was presenting with in early 2023. It is worth noting that the Complainant has never been sent forward for a psychiatric clinical assessment for OCD. It is also worth noting that the fact of attending her Doctor was not made known to the Employer nor did it need to be.

The Complainant says she had advised the store Manager (P) of an  OCD disorder in March of 2023. The Complainant says that it was a condition which she had always openly addressed and acknowledged to have had in the workplace. She was therefore surprised that P had not noted it on her personnel file. I am not convinced that the Complainant’s assertions within the workplace ever came over to her Manager and colleagues as a declaration of a psychiatric disorder. The Complainant’s assertions were it seems interpreted more by way of an explanation for her own unique idiosyncrasies. I am satisfied that the Complainant had not ever formally presented a medical report or diagnosis which might have given more weight to her own words.

In her evidence the Complainant repeatedly said that she was aware that her presentation work might take longer than most others but that the end product was excellent. She could be relied upon to organise and front and present merchandise in an optimum way.

In August of 2023 (nine months into her employment) the Complainant was moved primarily into General Merchandising which, she says, really suited her. The Complainant described herself as obsessively tidy, so the role of sorting out and re-stocking shelves, as well as displaying promotional merchandise, was very satisfying for her.

The Complainant says that she was always praised for her fronting and presentation and could be relied on to prepare and rotate the seasonal stock. The Complainant says she took pride in her work though she did give evidence that P had said to her more than once not to “overthink it”.

The Respondent witnesses each said that the workplace had been undergoing significant changes at that time and that the workplace structures had been evolving since early January of 2024. There was a lot of new merchandise being trialled. Different price ranges were being introduced. The “new ways of working” were introduced across all retail stores to enhance operational efficiency within the General Merchandise (GM) area. This initiative aimed to improve the management and the flow of GM products from the warehouse to the shop floor. Key changes included the implementation of super sorting, which facilitated a smoother transition of the GM range. A key aspect of the process involved keeping large volumes of stock off the racking and instead storing them on pallets. Additionally, merchandise was organized from the top of the racking to maximize space for GM products and ensure GM bays followed schematic arrangements, in line with visual merchandising guidelines. To support the transition to this new working approach, E-Learning modules were also provided. These modules covered the process of splitting deliveries from pallets onto stock trolleys by department, enabling faster and more efficient replenishment.

CG the HR Manager said the operational change from January 2024 required additional resources including the new Manager TN who arrived in April. The Manager D had been moved from clothing to General Merch as part of in-house changes. The shop was trialling new brands and investing in a bigger range of products.

The Complainant had been primarily working within the area of General Merchandising for a full eight months. However, it seems that over time and possibly as a result of the sweeping new changes being brought into this workplace, the Complainant was doing less of her preferred work - the role of sorting out and re-stocking shelves, as well as the displaying of promotional merchandise. The Complainant was being pulled into the super-sorting process of loading trolleys from the mixed pallets of stock. TN gave evidence that the Complainant struggled with the new way of working.

On the 11th of April of 2024 the Complainant approached her assistant store Manager (by now a lady called D – who had been promoted into this role as part of the changes being implemented). The Complainant said she was offering to prepare the shelf ends for product promotions. The Complainant says that D laughed at the Complainant, refusing to allow her to perform this function and telling her that she was too slow. The Complainant was stunned at this put down. She says she felt deflated that D would say such a thing and laugh in her face. The Complainant said nobody had ever criticised the speed of her work before.

D did later get wind of the upset that she had caused the Complainant. There was an exchange of text messages wherein D stated:

“I honestly didn’t mean it at all, I feel awful and I take you off ends completely as you work better with delivery and doing sections like cleaning. I said how well it looked. I honestly didn’t mean by calling you slow at all I was joking and didn’t think before I spoke and Im really sorry about that”

D had suggested that the Complainant should talk to TN – the Store Manager. The Complainant approached TN later in the month.TN said that the Complainant had come to her directly after the incident with D and had said that she was thinking of leaving the workplace. TN says that in this conversation that the Complainant seemed to be really struggling with the work she was doing. TN encouraged the Complainant to not consider going for the option of leaving and suggested that the Complainant use her upcoming annual leave to consider her position. TN confirmed that there were other roles in the shop and suggested the tills, little knowing that the Complainant was not prepared to work tills in any circumstances. I understand there may also have been a discussion around shift patterns. TN gave evidence that there was nothing on the Complainant’s file to suggest that the Complainant needed any particular accommodation. There was also no reference to a disability.

The Complainant says she took her two weeks annual leave. She said that before she was due to come back, she went into the workplace and talked to TN. She says that she told TN that she wanted to stay in General Merchandising as she enjoyed it and was good at it. TN agreed with her and she returned to her role as before. I understand that (between annual leave and a short period of sick leave) the Complainant returned to the workplace in and around the 20th of May 2024. The Complainant says that things had changed however, and she wasn’t being asked to do the fronting and organising of bays and sections and was left on delivery all the time.

The Complainant approached TN again towards the end of May and asked why she was being left in delivery all the time while other members of staff were being asked to organise and change sections and bays which was the work she had previously done. According to the Complainant, TN replied that it was because the delivery needed to be done and that the changes needed to be done promptly which the Complainant took to mean that she was indeed being pegged as too slow to perform certain tasks which were the tasks she most enjoyed doing.

The Complainant wrote to HR representative CG on the 29th of May 2024 asserting that she was being discriminated against on account of her having OCD. She stated:

Subject: Discrimination

With my OCD I do take more time to do changes than others but my work is always 100% and don’t feel like this should be held against me,

The Complainant went on to say:

After this conversation with Tomas I felt very anxious and upset and walked out for some air,, when I went back to work I felt worse and told Tom I needed to go home as I felt I was having an anxiety attack….I thought by approaching Tomas about how i was feeling and about my OCD and how it can affect me while working that it would clear the air but instead I feel like he was very unprofessional and unsympathetic.

HR acknowledged receipt of the email and sought the Complainant’s staff number so that the case could be correctly logged and the next steps be proceeded with. Nothing further was said directly to the Complainant, and the Complainant simply resigned her role on the 12th of June 2024 in the following terms:

Re: Discrimination

I just wanted to let you know that i have left the company because of this complaint but i hope you can look into it either way as id hate for anyone else to feel like they cant work because of people that discriminate against others

The Respondent thereafter confirmed it would nonetheless continue with an investigation into the matter.

The Respondent has provided me with the Information form provided by/completed by the Complainant at the start of her employment. There is no suggestion of a disability contained therein. Nor is there a suggestion of a reasonable accommodation being required. Neither of these two facts changed in the course of the employment. In fact, the only formal evidence touching on the complainant’s condition is contained in a medical report prepared in anticipation of these proceedings coming on for hearing. The Complainant provided the WRC and the Respondent with a medical report from her GP dated the 13th of March 2025. The relevant excerpt from the report reads as follows:

This is to confirm that Sharon Brock Byrne attended on the 5th of March 2023 with anxiety and symptoms suggestive of OCD. She has been prescribed… since 05/03/23

I am no medical expert, but I do not believe that it would be appropriate for me to assign the coded language of “symptoms suggestive of OCD” as a formal diagnosis of a Neurodiverse condition. The Complainant has not been formally diagnosed by a Consultant Psychiatrist or a Clinical Psychologist. With the greatest of respect to the Complainant, I am not satisfied that she has established that she has a disability for the purposes of the Employment Equality Acts.

In this regard I have considered the definition assigned by the Act as follows:

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

I fully accept that there are circumstances where a person with a formal diagnosis of OCD might be considered to have a chronic mental health condition, potentially giving rise to stigma and distress. I am not satisfied that the Complainant has presented this evidence. The Complainant has described a love of order, symmetry and cleanliness which gives her great satisfaction to perform. By way of cultural reference the Complainant might be described as a bit of a Monica. The Complainant has not suggested a mental anxiety and/or distress at not being allowed to perform these functions.

I am satisfied that the workplace was changing around the Complainant who was resistant to giving up the work she most enjoyed doing. The fact is that the Complainant was performing many functions in General Merchandising without any problem and it was only when D suggested that her re-stocking and sorting of shelves was too slow, that the Complainant became annoyed and upset.

It seems to me that the Complainant was looking for some sort of reasonable accommodation which would allow her to do only that work which she wanted to do and particularly enjoyed doing. The Complainant was attempting to pick and choose the work she wanted to do.

A letter of the 5th of April 2023  -look at this?

However, under new management and a newly streamlined system there was no extra time being allowed for the care and attention the Complainant needed to perform certain tasks. The Complainant is incorrectly equating the Respondent’s desire for greater efficiencies (directed at all staff) as unfavourable treatment directed at her in the knowledge that she had a disability which required some accommodation. I cannot agree with this assessment.

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

CA-00064162-001 The Complainant has failed to show a prima facie that she has been discriminated against on the grounds of a disability. The complaint herein fails.