Complainant

Respondent

Anonymised Parties

A Clerical Worker

A Healthcare Employer

Representatives

  Alastair Purdy and Co. Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00065876-001

10/09/2024

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

CA-00065876-002

10/09/2024

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

CA-00065876-003

10/09/2024

The complainant submits that he was paid less than the amount due and that the respondent discriminated against him on the disability grounds by failing to provide reasonable accommodation.

The complainant submits that he was deemed fit to return to work on 02/04/2024 by Occupational Health and by his own GP.  His employer advised that he could not return to his place of work pending a risk assessment. The failure of the respondent to conduct a risk assessment prevented the complainant returning to work and as a result there are monies owing.

The complainant commenced employment on 07/01/2019 as Clerical Officer Grade III and on 18/12/2023 was temporarily assigned to Grade IV until 17/12/2023 and then returned to Grade III.  On 17//05/2023 the complainant was diagnosed with Autism and on 14/09/2023 advised the respondent of this diagnosis and requested blended working of 2 days working from home and 3 days in the office and submitted a report from his gp stating that he “feels reducing his working hours to 3 days a week, from 5, on a trial basis, would be beneficial to him for him at this time” and the Department Manager Ms B acknowledged same.  On 20/09/2023 the complainant stated that he wished to remain working 5 days per week.

Around October 2023 the complainant’s laptop became damaged and he requested that his screen be repaired. And the complainant denied that he requested a second laptop.  He was provided a second laptop but never used this second laptop.  On 28/09/2023 the complainant was requested to attend OH to discuss his diagnosis and on 24/10/2023 the complainant expressed concern about a desk change and on 26/10/2023 a meeting took place with Ms A.  The complainant did not get the expected chance to discuss his challenges and was shouted at and intimidated and expected to sign a change of hours form and when the complainant appeared reluctant to sign the form Ms A ended the meeting abruptly.  Ms A furthermore suggested the complainant change careers and move out of the department.  The complainant would not sign the form and requested that further meetings take place with his union representative.  The complainant denied that he refused to attend OH and EAP and instead looked for some more time.  Ms A also stated the complainant performance was not where it was expected to be and the complainant felt he was singled out because of his diagnosis.  The complainant felt very stressed and went out on sick leave from 30/10/2023.

The complainant attended OH on 15/01/2024 and it was submitted that the complainant was unfit for work and a further review took place on 06/03/2024.  The union rep for the complainant advised that the complainant did not want to work 3 days week and wanted to revert to his Permanent Grade III position and the complainant was deemed fit to return to work by OH 4 weeks after the OH assessment on a phased basis.  The complainant was deemed fit to return on 02/04/2024 and a return to work meeting took place on 24/04/2024 with the complainant and Ms A and Ms B and the union rep.  Ms A wanted to know why she was mentioned in the OH report and the respondent was very hostile and brought up allegations regarding the complainant’s performance which was refuted by the complainant. Ms A had to be reminded that the purpose of the meeting was the complainant’s return to work.  It appeared the respondent was delaying the return to work of the complainant and the complainant was encouraged to submit medical certs and apply for TRR despite feeling ready to return to work. 

On 25/04/2024 the complainant outlined his unhappiness with matters and follow up emails were sent to the respondent enquiring as to what were next steps.  A follow up meeting was arranged with OH who again said the complainant was fit to return work 22/05/2024.  It appeared that the respondent was expecting the complainant to arrange the risk assessment and it appeared that the respondent was sending emails to the complainant’s work email which he did not have access to.  On 12/06/2024 the complainant’s solicitor engaged with the respondent where the respondent was requested to arrange the risk assessment.  Further communication was sent to the respondent and the respondent appeared to be shifting responsibility for delays to the complainant and the complainant advised 28/08/2024 that he was happy to attend a meeting with a risk assessor but if no risk assessor present he failed to understand the purpose of the meeting.  The complainant referred the complaint to the WRC on 24/09/2024 and the respondent was advised that the recommendation from the OH was not a precursor to the complainant returning to work and the complainant had no option but to complete a risk assessment in so far as he could without any qualification to do so.  A further OH report sent on 29/10/2024 confirmed the complainant was medically fit to return to work.

Payment of Wages Claim

It was submitted that the complainant should have been returned to work on 02/04/2024 and paid through payroll and this did not happen.  Wages should not have been withheld and it was a deduction in his wages.  The OH report outlined the complainant was in a position to return to work and there is reference to the complainant being fit to meet the respondent regarding his return to work and supports and there is a recommendation of a risk assessment to “optimise his work environment”.  This does not say the complainant cannot return until  a risk assessment is carried out.  The complainant was advised by the respondent he could not return until a risk assessment was carried out and the complainant outlined his willingness to engage with a risk assessor but this did not happen and the respondent failed to complete a risk assessment in line with their own policies and procedures. The complainant was fit to return to work and a recommendation was made to carry out a risk assessment but it was not a pre-condition.

Case law cited Balans v Tesco Ireland Ltd IEHC55, Dunnes Stores Cornell Court Ltd v Lacey IR 478, A Retail Company v A Worker PWD2024, A Government Department v A (2008) ELR 354, Nano Nagle v Marie Daly [2019] IESC 63,

The complainant’s evidence was that he was a temporary Grade 4 and is now a Grade 3 and has been employed from 2019.  In May 2023 he received a diagnosis of autism and around mid Mid Sept 2023 he was looking for a 2nd day a week to work remotely.  Management were aware of his diagnosis and he found something like moving desk was an issue for him and he sent an email outlining his concerns and was anxious about this as he was moved to facilitate new hires.  He thought the meeting of 26/10/2023 was regarding his wish to work from home and there was no agenda to that meeting.  At that meeting 26/10/2023 he thought he would get to air his grievance but was reminded that there are loads of careers out there and felt he was being encouraged to leave the department and felt intimidated.  There was no discussion about his circumstances at the meeting and it was said the GP letter had to be adhered TO.  He did not sign the letter given to him to reduce his hours and did not decline a OH meeting and he was just looking for more info.  After that day there was an increase in stress on him and he sent in a sick cert for a period of time and was referred OH on 15/1/2024.  He was optimistic that he would return to work following the 06/03/2024 report and there was a meeting of 24/04/2024 with no agenda and he found this meeting hostile as there were discussions about his performance and whether he was stable and he did not know who would carry out this risk assessment.  The issue of the laptop was raised and he felt was like he was giving evidence at that meeting.    By 26/04/2024 he had stopped sending in sick certs and felt unsure what was happening and was confused.  The first meeting took 1 month to happen and he was never given a risk assessment and did not feel it was his duty to do the risk assessment.  No further meetings were arranged and he was suffering a loss of income and eventually he filled in the risk assessment form and submitted it but was not able to fill it out completely and was not permitted to attend work.  He was told by the respondent that he was not co-operative on 24/10/2024.  He did not believe the respondent worked in a timely manner and no reasonable accommodation was given and others out sick with different disabilities would have received different treatment.

Under cross examination he confirmed he was deemed unfit on 15/01/2024 and that OH did not give a specific date for his return but said it would be early the following month. He read through the generic assessment where it stated no hazards noted and no change required and said Ms B contacted him and a meeting was arranged maybe end of November 2024.  A return to work was arranged for 02/12/2024 and he got sick pay up to 01/12/2024 and nothing further was submitted from his GP and confirmed that the GP had said his days should be reduced.  He said he never submitted a flexible work application, worked 3 days on site and then 1 day remote and he currently works 35 hours.  He said there was discrimination and that he is still an employee of the respondent and that he was paid in line with the terms and conditions of the sick pay of the respondent.  He said he was not allowed to return to work.

It was denied that payment was owing to the complainant.  On 14/09/2023 the complainant sought to increase blended working from 1 day to 2 days and also submitted medical reports that recommended working hours be reduced to 3 days per week.

The complainant was provided with a link to a relevant form for completion regarding the reduced week from 5 days to 3 days.  The complainant replied that he wished to continue working 5 days and wanted blended working of 2 days and was advised that his request for 2 days blended working would be processed in accordance with the respondent’s policy. On 28/09/2023 the complainant was requested to meet to discuss attending OH and the complainant submitted he did not intend seeing OH.  A meeting was arranged with Ms A about possible desk moves and on 26/10/2023  the complainant admitted at this frank meeting that he had difficulty with his diagnosis of autism and agreed to work 3 days instead of 5 days.  The relevant form was left on his desk for completion.  The complainant returned the form and said he would not reduce his days and that he would not meet management without union representation.

The complainant was absent from work from 23/10/2023 until 02/12/2024 .  The cert indicated he was unfit for work and he was referred to OH for review.  A report on 15/01/2024 advised that the complainant was unfit for work and there were unresolved work issues affecting his return to work.  His union on his behalf contacted Ms A saying the gp misunderstood what the complainant had meant regarding 3 days per week.  On 13/02/204 the complainant through his rep was advised that a meeting should be held when the complainant was deemed by OH fit to attend.  A further medical report of 06/03/2024 indicated that the symptoms of the complainant were triggered by the 26/10/2023 meeting.  The complainant was advised to engage with management and the EAP to assist his return.  It was further recommended that a phased return should apply and that a risk assessment should be completed. On 24/04/2024 a further meeting took place and the complainant was advised at this meeting that there were concerns regarding breach of laptop policy re use of an unauthorised laptop by the complainant when his laptop stopped working.  The complainant was advised that the management were not familiar with adult autism and sought assistance from the complainant with appropriate next steps in conducting a risk assessment and his union agreed to this.  The respondent sought assistance from autism support groups and on 24/04/2024 the respondent was advised by the union that the respondent should be the ones to follow up on a risk assessment.  OH advised to contact the diversity section of the respondent .  The respondent reached out to the Diversity, Equality and Inclusion section of the respondent regarding a risk assessment who complimented the respondent on their

“very positive steps already in this case.  I would suggest that while a risk assessment is potentially a constructive approach consideration of the support that may be helpful to this employee via a Reasonable Accommodation might be more useful”

 and suggested engaging the complainant also with a staff network of employees with disabilities some of whom were neurodiverse.  There were also suggestions regarding reasonable accommodation.  The complainant sought admittance to the Temporary Rehabilitation Remuneration (TRR) and this was approved and processed by the respondent. A further discussion by OH took place with the complainant

PAYMENT OF WAGES CLAIM

The respondent made every effort to comply with the complainant’s gp report that the complainant’s week was to be reduced from 5 days to 3 days.  The complainant contributed to matters by not making himself available to complete a risk assessment. The complainant’s own gp certified him unfit for work from 27/10/2023 until the final cert of 01/12/2024 and he received the respondent’s full sick pay entitlement.  The claim by the complainant of fitness to return to work from 02/04/2024 was frustrated by his gp issuing certs setting out that he was unfit to return to work.  From 12/06/2024 until 22/08/2024 it was unclear who was the complainant’s representative.

Case law cited included Adj-0005819 An Employee v a Company

Evidence of Ms A

Ms A  said she is based in the Office X and goes to Office Y once per week and relies heavily of Ms B who had close day to day responsibility.  She was aware there was a letter from the complainant’s GP regarding his disability and offered to meet the complainant and it was informal and the complainant had not initiated a grievance.  She denied shouting at the complainant and never forced him to stay in the office with her.  There was a wish to keep the Grade 4s together in one office to create a collegial atmosphere and he was considered a valuable staff member of staff.  He told her he had a difficulty with acting up to a pending permanent and had a difficulty accepting the diagnosis of autism and had reduced days working from 5 to 3 for 1 month.  She had told Ms B about the frank meeting with him and left a sealed envelope for his attention which had the document he needed to sign to reduce his hours but then he said he would not reduce his hours and that he would only meet me with his union rep.  The complainant told her that the GP had misunderstood what had been meant and the OH report was a concern as there were triggers for his condition.  The OH report suggested a risk assessment and there was a discussion regarding return to work.  She requested a review of his files while he was out and she was told by his union rep to deal with his performance issues another time and she was not happy when there was a discussion that she was triggering his condition.  She brought up about the laptop as there might have been a concern that he had breached confidentiality but it was clarified that there was no confidential systems on the laptop.  She  had done extensive research about adult autism and was told by OH that a normal risk assessment could be completed for the complainant 

Under cross examination Ms A e said the 2023 meeting had an agenda and that he raised the blended working at the meeting.  The complainant said that he was struggling and she could see it with his output and this has not been raised previously by his line manager.  The meeting was a frank meeting at which she commenced the meeting talking about his output of files.  She denied that she said she had no sympathy for him and said it was the first time she had been told that she had triggered someone and local management were alarmed with this and it was a concerning comment.  She confirmed that the OH report said he would be fit to return “early next month” and that the report had many recommendations and they look at the full report not just two words.  His union representative said that the performance issues should be parked when she brought it up.  There were no discussions at that meeting about working fully remote.  It was felt that there should be a risk assessment and that she had not dealt with someone with adult autism before.  They repeatedly tried to have him fill in the risk assessment.  They had dealt initially with a trade union and then a solicitor and sought clarification from him about whether it was to be the solicitor or union rep that would deal with matters on his behalf.  She was aware that the complainant had not sent in sick certs for a while and there was no report from his GP saying he was fit to return to work.

Evidence of Ms B

Ms B advised she met with complainant on 22/09/2023 and thereafter most correspondence was through email.  She noted the recommendations from OH and she told him that working from home would be done in conjunction with policies and the policy was 1 day per week and he was looking for 2 days. The meeting of 24/04/2024 ended on good terms and everyone agreed to come back at another stage and she expressed concerns about a risk assessment.  She recollected a discussion about files the complainant was working on and it was her understanding on 28/05/2024 that the complainant was to consider how he would return to work.  The complainant’s rep was at times unavailable for meetings and the next interaction was 24/10/2024 when the risk assessment was completed and his return was arranged for 02/12/2024 and he is back to work since then and works 2 days from home and everything seems to be fine with him.

Under cross examination she was not aware of any performance issues raised and did not have any discussion with the complainant.    The complainant emailed about 2 days working from home and emailed with a blended application and did not mention the blended hours.  The policy had to be applied and a risk assessment had to be carried out.  The complainant was not interested in attending OH and was advised of the EAP.  She did not want to cause undue stress and was threading carefully and did not raise concerns with him about working with him.  Her understanding from 24/04/2024 was that the complainant was returning to work and that Ms A had mentioned about the laptop and targets to the complainant.  She believed it was appropriate to discuss the laptop at that meeting.  The department was to carry out the risk assessment and in running a department it was necessary to make sure the complainant had a satisfactory return and it was important to get the employee back to work.  The complainant was expected to review the risk assessment  and then discuss it and she agreed that when she read through the policy it was the responsibility of management to identify the hazards and the risk assessment is not fit for purpose for someone on the autism spectrum.  She apologised to the complainant that the document was sent to his email address while he was out sick and could not recall if guidelines were sent to the complainant regarding the risk assessment.  She did not agree there were unnecessary delays from 06/03/2024 and did not agree there was any financial penalty imposed on the complainant.

The complainant submits that there are monies owing due to the respondent’s failure to allow the complainant to return to work.  The respondent submits that the complainant received appropriate monies during the time his gp determined he was medically unfit for work.

WRC hearings involving the administration of justice (that is all WRC cases save for those for disputes under s.13 Industrial Relations Act 1969), are conducted in public unless the relevant Adjudication Officer decides, of their own motion, or following an application from a party to the proceedings, that due to the existence of ‘special circumstances’, the proceedings should be conducted in private.  ‘Special circumstances may include the following non-exhaustive list: cases involving a minor; circumstances where a party has a disability or medical condition, which they do not wish to be revealed; cases involving issues of a sensitive nature such as sexual harassment complaints etc.  Having considered all the submissions including the medical condition of the complainant and noting no objection from the respondent, I have made the decision to anonymise the decision.

Section 1 of the Act states:

wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

( a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

( b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind

To succeed in a claim under the Payment of Wages Act 1991, it must be ascertained if wages were properly payable to the Complainant during the relevant period.

Section 5sets out regardingcertain deductions

Regulation of certain deductions made and payments received by employers.

5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

 and section 5(6) provides.

“Where—  

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

It is to be established, therefore, whether as in Marek Balans v Tesco Ireland Limited [2020] IEHC 55 there were wages that were properly payable during the relevant period.  The Act defines wages as “in relation to an employee, means any sums payable to the employee by the employer in connection with his employment”. The complainant confirmed in his evidence that he submitted certs from his GP setting out he was unfit for work and the complainant further confirmed that he was paid sick pay in line with respondent’s sick pay scheme.  Even after the OH outlined his fitness to return to work, the complainant mostly continued to submit sick certs which he received sick pay in line with the respondent’s policy. 

Having taken into consideration the evidence and submissions of the parties I find that the Complainant has not identified wages that properly payable during the relevant period that were not paid and that the claim is not well founded and I dismiss the complaint.

The complainant submits that he was deemed fit to return to work on 02/04/2024 by Occupational Health and by his own GP.  His employer advised that he could not return to his place of work pending a risk assessment. The failure of the respondent to conduct a risk assessment prevented the complainant returning to work and as a result there are monies owing.

The complainant commenced employment on 07/01/2019 as Clerical Officer Grade III and on 18/12/2023 was temporarily assigned to Grade IV until 17/12/2023 and then returned to Grade III.  On 17//05/2023 the complainant was diagnosed with Autism and on 14/09/2023 advised the respondent of this diagnosis and requested blended working of 2 days working from home and 3 days in the office and submitted a report from his gp stating that he “feels reducing his working hours to 3 days a week, from 5, on a trial basis, would be beneficial to him for him at this time” and the Department Manager Ms B acknowledged same.  On 20/09/2023 the complainant stated that he wished to remain working 5 days per week.

Around October 2023 the complainant’s laptop became damaged and he requested that his screen be repaired. And the complainant denied that he requested a second laptop.  He was provided a second laptop but never used this second laptop.  On 28/09/2023 the complainant was requested to attend OH to discuss his diagnosis and on 24/10/2023 the complainant expressed concern about a desk change and on 26/10/2023 a meeting took place with Ms A.  The complainant did not get the expected chance to discuss his challenges and was shouted at and intimidated and expected to sign a change of hours form and when the complainant appeared reluctant to sign the form Ms A ended the meeting abruptly.  Ms A furthermore suggested the complainant change careers and move out of the department.  The complainant would not sign the form and requested that further meetings take place with his union representative.  The complainant denied that he refused to attend OH and EAP and instead looked for some more time.  Ms A also stated the complainant performance was not where it was expected to be and the complainant felt he was singled out because of his diagnosis.  The complainant felt very stressed and went out on sick leave from 30/10/2023.

The complainant attended OH on 15/01/2024 and it was submitted that the complainant was unfit for work and a further review took place on 06/03/2024.  The union rep for the complainant advised that the complainant did not want to work 3 days week and wanted to revert to his Permanent Grade III position and the complainant was deemed fit to return to work by OH 4 weeks after the OH assessment on a phased basis.  The complainant was deemed fit to return on 02/04/2024 and a return to work meeting took place on 24/04/2024 with the complainant and Ms A and Ms B and the union rep.  Ms A wanted to know why she was mentioned in the OH report and the respondent was very hostile and brought up allegations regarding the complainant’s performance which was refuted by the complainant. Ms A had to be reminded that the purpose of the meeting was the complainant’s return to work.  It appeared the respondent was delaying the return to work of the complainant and the complainant was encouraged to submit medical certs and apply for TRR despite feeling ready to return to work. 

On 25/04/2024 the complainant outlined his unhappiness with matters and follow up emails were sent to the respondent enquiring as to what were next steps.  A follow up meeting was arranged with OH who again said the complainant was fit to return work 22/05/2024.  It appeared that the respondent was expecting the complainant to arrange the risk assessment and it appeared that the respondent was sending emails to the complainant’s work email which he did not have access to.  On 12/06/2024 the complainant’s solicitor engaged with the respondent where the respondent was requested to arrange the risk assessment.  Further communication was sent to the respondent and the respondent appeared to be shifting responsibility for delays to the complainant and the complainant advised 28/08/2024 that he was happy to attend a meeting with a risk assessor but if no risk assessor present he failed to understand the purpose of the meeting.  The complainant referred the complaint to the WRC on 24/09/2024 and the respondent was advised that the recommendation from the OH was not a precursor to the complainant returning to work and the complainant had no option but to complete a risk assessment in so far as he could without any qualification to do so.  A further OH report sent on 29/10/2024 confirmed the complainant was medically fit to return to work.

Equality Claim

The complainant suffered a disability due to the diagnosis of Autism Spectrum Disorder (ASD) and the respondent were on notice of this from 14/09/2023.  This provides a positive obligation on respondent to take appropriate measures to remove barriers and make adjustments.  The complainant was deemed fit to return to work, and sought to return to work and instead of being accommodated, the respondent placed obstacles in front of him to hinder his return.  This included accusations of poor performance and allegations of damage to company property.  The onus of a risk assessor was placed on the complainant despite being a recommendation of the OH department.  The respondent failed to accommodate the complainant.

Case law cited Balans v Tesco Ireland Ltd IEHC55, Dunnes Stores Cornell Court Ltd v Lacey IR 478, A Retail Company v A Worker PWD2024, A Government Department v A (2008) ELR 354, Nano Nagle v Marie Daly [2019] IESC 63,

The complainant’s evidence was that he was a temporary Grade 4 and is now a Grade 3 and has been employed from 2019.  In May 2023 he received a diagnosis of autism and around mid Mid Sept 2023 he was looking for a 2nd day a week to work remotely.  Management were aware of his diagnosis and he found something like moving desk was an issue for him and he sent an email outlining his concerns and was anxious about this as he was moved to facilitate new hires.  He thought the meeting of 26/10/2023 was regarding his wish to work from home and there was no agenda to that meeting.  At that meeting 26/10/2023 he thought he would get to air his grievance but was reminded that there are loads of careers out there and felt he was being encouraged to leave the department and felt intimidated.  There was no discussion about his circumstances at the meeting and it was said the GP letter had to be adhered TO.  He did not sign the letter given to him to reduce his hours and did not decline a OH meeting and he was just looking for more info.  After that day there was an increase in stress on him and he sent in a sick cert for a period of time and was referred OH on 15/1/2024.  He was optimistic that he would return to work following the 06/03/2024 report and there was a meeting of 24/04/2024 with no agenda and he found this meeting hostile as there were discussions about his performance and whether he was stable and he did not know who would carry out this risk assessment.  The issue of the laptop was raised and he felt was like he was giving evidence at that meeting.    By 26/04/2024 he had stopped sending in sick certs and felt unsure what was happening and was confused.  The first meeting took 1 month to happen and he was never given a risk assessment and did not feel it was his duty to do the risk assessment.  No further meetings were arranged and he was suffering a loss of income and eventually he filled in the risk assessment form and submitted it but was not able to fill it out completely and was not permitted to attend work.  He was told by the respondent that he was not co-operative on 24/10/2024.  He did not believe the respondent worked in a timely manner and no reasonable accommodation was given and others out sick with different disabilities would have received different treatment.

Under cross examination he confirmed he was deemed unfit on 15/01/2024 and that OH did not give a specific date for his return but said it would be early the following month. He read through the generic assessment where it stated no hazards noted and no change required and said Ms B contacted him and a meeting was arranged maybe end of November 2024.  A return to work was arranged for 02/12/2024 and he got sick pay up to 01/12/2024 and nothing further was submitted from his GP and confirmed that the GP had said his days should be reduced.  He said he never submitted a flexible work application, worked 3 days on site and then 1 day remote and he currently works 35 hours.  He said there was discrimination and that he is still an employee of the respondent and that he was paid in line with the terms and conditions of the sick pay of the respondent.  He said he was not allowed to return to work.

It was denied that the complainant was discriminated against.  On 14/09/2023 the complainant sought to increase blended working from 1 day to 2 days and also submitted medical reports that recommended working hours be reduced to 3 days per week.

It was denied that payment was owing to the complainant.  On 14/09/2023 the complainant sought to increase blended working from 1 day to 2 days and also submitted medical reports that recommended working hours be reduced to 3 days per week.

The complainant was provided with a link to a relevant form for completion regarding the reduced week from 5 days to 3 days.  The complainant replied that he wished to continue working 5 days and wanted blended working of 2 days and was advised that his request for 2 days blended working would be processed in accordance with the respondent’s policy. On 28/09/2023 the complainant was requested to meet to discuss attending OH and the complainant submitted he did not intend seeing OH.  A meeting was arranged with Ms A about possible desk moves and on 26/10/2023  the complainant admitted at this frank meeting that he had difficulty with his diagnosis of autism and agreed to work 3 days instead of 5 days.  The relevant form was left on his desk for completion.  The complainant returned the form and said he would not reduce his days and that he would not meet management without union representation.

The complainant was absent from work from 23/10/2023 until 02/12/2024 .  The cert indicated he was unfit for work and he was referred to OH for review.  A report on 15/01/2024 advised that the complainant was unfit for work and there were unresolved work issues affecting his return to work.  His union on his behalf contacted Ms A saying the gp misunderstood what the complainant had meant regarding 3 days per week.  On 13/02/204 the complainant through his rep was advised that a meeting should be held when the complainant was deemed by OH fit to attend.  A further medical report of 06/03/2024 indicated that the symptoms of the complainant were triggered by the 26/10/2023 meeting.  The complainant was advised to engage with management and the EAP to assist his return.  It was further recommended that a phased return should apply and that a risk assessment should be completed. On 24/04/2024 a further meeting took place and the complainant was advised at this meeting that there were concerns regarding breach of laptop policy re use of an unauthorised laptop by the complainant when his laptop stopped working.  The complainant was advised that the management were not familiar with adult autism and sought assistance from the complainant with appropriate next steps in conducting a risk assessment and his union agreed to this.  The respondent sought assistance from autism support groups and on 24/04/2024 the respondent was advised by the union that the respondent should be the ones to follow up on a risk assessment.  OH advised to contact the diversity section of the respondent .  The respondent reached out to the Diversity, Equality and Inclusion section of the respondent regarding a risk assessment who complimented the respondent on their

“very positive steps already in this case.  I would suggest that while a risk assessment is potentially a constructive approach consideration of the support that may be helpful to this employee via a Reasonable Accommodation might be more useful”

 and suggested engaging the complainant also with a staff network of employees with disabilities some of whom were neurodiverse.  There were also suggestions regarding reasonable accommodation.  The complainant sought admittance to the Temporary Rehabilitation Remuneration (TRR) and this was approved and processed by the respondent. A further discussion by OH took place with the complainant

EQUALITY CLAIM

It was disputed that the complainant was discriminated against on the disability grounds and failure to provide reasonable accommodation.  A report of 15/01/2024 from OH set out that the complainant was triggered by a meeting of 23/10/2023 and required a risk assessment be completed. The respondent outlined their concerns that the any issues discussed with the complainant would trigger him.  The complainant’s gp set out that he should have his working week reduced from 5 days to 3 days and the respondent made efforts to accommodate him and he was provided with the appropriate form to complete but did not do so.   The respondent furthermore sought advice from external sources regarding his disability of autism.  The complainant contributed to his failure to return to work by his unavailability  to attend meetings and failure to complete a risk assessment.  By seeking the complainant to complete a risk assessment the respondent was endeavouring to make an informed and considered decision and the complainant’s active participation was sought with regards to this.  On 30/10/2024 a medical report from OH set out that the complainant was medically fit to return to work and was not seeking specific adjustments.   Dates for meetings were offered to the complainant regarding his return to work and a return to work occurred on 02/12/2024 and while absent the complainant received sick benefits/payments.

Case law cited included Adj-0005819 An Employee v a Company

Evidence of Ms A

Ms A  said she is based in the Office X and goes to Office Y once per week and relies heavily of Ms B who had close day to day responsibility.  She was aware there was a letter from the complainant’s GP regarding his disability and offered to meet the complainant and it was informal and the complainant had not initiated a grievance.  She denied shouting at the complainant and never forced him to stay in the office with her.  There was a wish to keep the Grade 4s together in one office to create a collegial atmosphere and he was considered a valuable staff member of staff.  He told her he had a difficulty with acting up to a pending permanent and had a difficulty accepting the diagnosis of autism and had reduced days working from 5 to 3 for 1 month.  She had told Ms B about the frank meeting with him and left a sealed envelope for his attention which had the document he needed to sign to reduce his hours but then he said he would not reduce his hours and that he would only meet me with his union rep.  The complainant told her that the GP had misunderstood what had been meant and the OH report was a concern as there were triggers for his condition.  The OH report suggested a risk assessment and there was a discussion regarding return to work.  She requested a review of his files while he was out and she was told by his union rep to deal with his performance issues another time and she was not happy when there was a discussion that she was triggering his condition.  She brought up about the laptop as there might have been a concern that he had breached confidentiality but it was clarified that there was no confidential systems on the laptop.  She  had done extensive research about adult autism and was told by OH that a normal risk assessment could be completed for the complainant 

Under cross examination Ms A e said the 2023 meeting had an agenda and that he raised the blended working at the meeting.  The complainant said that he was struggling and she could see it with his output and this has not been raised previously by his line manager.  The meeting was a frank meeting at which she commenced the meeting talking about his output of files.  She denied that she said she had no sympathy for him and said it was the first time she had been told that she had triggered someone and local management were alarmed with this and it was a concerning comment.  She confirmed that the OH report said he would be fit to return “early next month” and that the report had many recommendations and they look at the full report not just two words.  His union representative said that the performance issues should be parked when she brought it up.  There were no discussions at that meeting about working fully remote.  It was felt that there should be a risk assessment and that she had not dealt with someone with adult autism before.  They repeatedly tried to have him fill in the risk assessment.  They had dealt initially with a trade union and then a solicitor and sought clarification from him about whether it was to be the solicitor or union rep that would deal with matters on his behalf.  She was aware that the complainant had not sent in sick certs for a while and there was no report from his GP saying he was fit to return to work.

Evidence of Ms B

Ms B advised she met with complainant on 22/09/2023 and thereafter most correspondence was through email.  She noted the recommendations from OH and she told him that working from home would be done in conjunction with policies and the policy was 1 day per week and he was looking for 2 days. The meeting of 24/04/2024 ended on good terms and everyone agreed to come back at another stage and she expressed concerns about a risk assessment.  She recollected a discussion about files the complainant was working on and it was her understanding on 28/05/2024 that the complainant was to consider how he would return to work.  The complainant’s rep was at times unavailable for meetings and the next interaction was 24/10/2024 when the risk assessment was completed and his return was arranged for 02/12/2024 and he is back to work since then and works 2 days from home and everything seems to be fine with him.

Under cross examination she was not aware of any performance issues raised and did not have any discussion with the complainant.    The complainant emailed about 2 days working from home and emailed with a blended application and did not mention the blended hours.  The policy had to be applied and a risk assessment had to be carried out.  The complainant was not interested in attending OH and was advised of the EAP.  She did not want to cause undue stress and was threading carefully and did not raise concerns with him about working with him.  Her understanding from 24/04/2024 was that the complainant was returning to work and that Ms A had mentioned about the laptop and targets to the complainant.  She believed it was appropriate to discuss the laptop at that meeting.  The department was to carry out the risk assessment and in running a department it was necessary to make sure the complainant had a satisfactory return and it was important to get the employee back to work.  The complainant was expected to review the risk assessment  and then discuss it and she agreed that when she read through the policy it was the responsibility of management to identify the hazards and the risk assessment is not fit for purpose for someone on the autism spectrum.  She apologised to the complainant that the document was sent to his email address while he was out sick and could not recall if guidelines were sent to the complainant regarding the risk assessment.  She did not agree there were unnecessary delays from 06/03/2024 and did not agree there was any financial penalty imposed on the complainant.

The complainant submits that the respondent failed to provide reasonable accommodation on the disability grounds and that instead of reasonable accommodation, obstacles were placed in front of the complainant hindering his return to work.  The respondent submits that the complainant remained unfit for work and that the respondent was, therefore, not in a position to facilitate the complainant’s return to work, no reasonable accommodation was sought and that the complainant would not comply with the OH recommendation of engaging with the risk assessment.

WRC hearings involving the administration of justice (that is all WRC cases save for those for disputes under s.13 Industrial Relations Act 1969), are conducted in public unless the relevant Adjudication Officer decides, of their own motion, or following an application from a party to the proceedings, that due to the existence of ‘special circumstances’, the proceedings should be conducted in private.  ‘Special circumstances may include the following non-exhaustive list: cases involving a minor; circumstances where a party has a disability or medical condition, which they do not wish to be revealed; cases involving issues of a sensitive nature such as sexual harassment complaints etc.  Having considered all the submissions including the medical condition of the complainant and noting no objection from the respondent, I have made the decision to anonymise the decision.

Section 6

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

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

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

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

Section 16 sets out .

(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as "appropriate measures") being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

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

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.]

(4) In subsection (3)—

"appropriate measures", in relation to a person with a disability—

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

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

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

It is set out in Section 85A(1) of the Act 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.”

Evidential burden imposed on a Complainant by section 85A is set out in Southern Health Board v Mitchell [2001] ELR:

“The first requirement is that the complainant 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 complainant 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 primary facts are established and 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.  It is therefore, for the complainant to establish primary facts upon which they rely and also that those are facts of sufficient significance to raise inference of discrimination. Cork City Council v McCarthy EDA 21 provides that :

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

Melbury Developments Ltd v Valpeters [2010] ELR 64 sets out clearly that:

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

It was not in dispute that the complainant has a disability of autism spectrum disorder (ASD) and was deemed unfit to return to work by the GP and by OH and that the OH department determined on 06/03/2024 that the complainant would be fit to return early the following month.  It was not in dispute that the complainant did not return to work until 02/12/2024 and that the complainant mostly continued to issue sick certs from his gp until that date.

It would appear that initially the respondent sought the complainant to source an assessor to carry out a risk assessment and that the complainant’s  trade union representative outlined in her email of 24/04/2024 that it would not be appropriate for the complainant to do so.  It was unclear what were the reasons for all the delays thereafter with the respondent sourcing an assessor and it would appear that the respondent eventually sourced a risk assessment form which they requested the complainant on numerous occasions to complete.  It was unclear why the respondent sought the complainant to complete the risk assessment on his own and it certainly would not appear that this decision was in line with their own procedures regarding completing a risk assessment.  It does appear that management decided that failures by the complainant to complete a risk assessment form would prevent his return to work despite the complainant outlining his unhappiness with completing the risk assessment.

Appropriate Measures are provided for under s16 of the Act and include “access to employment” and the Supreme Court judgement in Nano Nagle School v Daly [2019 IESC 63 sets out that employers are obliged to consider all appropriate measures which could be undertaken to provide reasonable accommodation and to demonstrate, if no such measures were taken, that this was only because those measures would be disproportionate or unduly burdensome.

The respondent references ADJ-00005819 An Employee v A Company to support their submission that “the respondent sought an active participation of the complainant in the risk assessmen”t.  Active participation does not mean that the overall burden should be placed on the complainantand I note that in ADJ-00005819 An Employee v A Company that the complainant was successful in their claim as :

“There is an onus on the  employer to carry out all such investigations in a timely, proactive manner”.

I am struck in this instant case that it would appear at times that the respondent began to lose sight of what they had in front of them, namely, an employee who wished to return to work and have access to their employment, and was supported by the respondent’s own OH who appeared happy the employee could return to work.  As set out by Mr Justice Peter Charleton in a dissenting judgement (although partly assenting in the analysis of MacMenamin J of the Nano Nagle case)

“ A person with a disability remains a person, an individual with human dignity who is required to be treated as such. Then the issue is as to how the workplace treats that person. The ideals in the Convention are translated into practical measures through the Directive and through the Act.”

In the instant case it would appear that this was not always to the forefront of the respondent, particularly with regards to giving the complainant access to employment andwhen OH suggests that the complainant will be fit to return from April 2024 it remained the case that it was December 2024 before the complainant returns with much of the delays owing to the respondent. 

The risk assessment clearly sets out that the responsibility for it lies with the respondent and it would be expected that this provides for active participation of the complainant andnot that the overall responsibility lay with the complainant.  I note Ms B’s credible evidence that the risk assessment form might have been unsuitable for someone with the disability of autism such as the complainant, yet the respondent sought to place the burden of its navigation with the complainant thereby hindering his access to employment and returning to work.  If Ms A and Ms B thought that the risk assessment form was unsuitable and indeed possibly not within their area of expertise to decide on, they should have raised their concerns with those who had this expertise in a timely and proactive manner.  It was also not lost on me that Ms A appeared to focus her attention on what she saw as performance issues which were unsubstantiated rather than working with the advice from Diversity, Equality and Inclusion section of the respondent where they sat out that reasonable accommodation might be more suitable than a risk assessment.  It appears the respondent seemed solely intent on the complainant navigating a possibly unsuitable risk assessment form.  Furthermore, albeit the respondent was on notice to seek out support from groups such as ASIAM it was not clear that this was done with an attempt to actively support the complainant’s return to work and it would appear that someone with a different disability would have been treated differently. 

Taking into consideration all the evidence and submissions, I find that the complainant has established a prima facie case and the respondent has not rebutted the claim of failure to provide reasonable accommodation.

I find therefore, that the complainant was discriminated against on the disability ground by the failure of the respondent to provide reasonable accommodation.  I therefore order the respondent to pay the complainant compensation of €5,000.

 I further order the Respondent to take a course of action to review their policies and procedures where a risk assessment and/or suitable reasonable accommodation is deemed necessary for persons with neuro diverse disabilities such as the autism spectrum disorder. 

The complainant withdrew this complaint.

CA-00065876-001

The complaint is not well founded and I dismiss the complaint.

CA-00065876-002

I find therefore, that the complainant was discriminated against on the disability ground by the failure of the respondent to provide reasonable accommodation.  I therefore order the respondent to pay the complainant compensation of €5,000.

 I further order the Respondent to take a course of action to review their policies and procedures where a risk assessment and/or suitable reasonable accommodation is deemed necessary for persons with neuro diverse disabilities such as the autism spectrum disorder. 

Autism, neuro diverse, reasonable accommodation.