Complainant

Respondent

Parties

Isaac  Ogimwonwi

G4 Security

Representatives

  Self- represented.

 Respondent Health and Safety personnel

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00070069-001

18/03/2025

The complainant submits that he was discriminated against on the grounds of race and disability contrary to the provisions of the Employment Equality Acts, 1998-2015 (“the Acts”). The complainant also maintains that the respondent victimized him.

The last act of discrimination occurred on 7/2/2025 when he complained of feeling unwell and the respondent refused to provide alternative, reasonable accommodation for him.

He has worked as a security officer with the respondent since 17/7/2024

His hourly rate of pay was €14.50.

He submitted his complaint to the WRC on 18/3/2025.

Preliminary matter: Appropriate Statute.

While the notification to the parties states that the complaint is to be heard under the Equal Status Act , 2000, the narrative in the complaint form submitted to the WRC makes it absolutely clear that it is a complaint under the Employment Equality Act, 1998. He states in the narrative on the complaint form that

“I was discriminated against under the Employment Equality Act 1998.”

His evidence clearly identifies the employer to be the person who discriminated against him.

At the hearing the complainant confirmed that the complaint is against his employer.

I will address this matter in my Findings and Conclusions.

Substantive Complaint.

The complainant is employed as a security officer. He operates out of a security hut checking persons, badges, goods, transport entering the construction site.

He submits that he was discriminated against on the grounds of disability and race when the respondent failed to offer him reasonable accommodation on the 7/2/2025.

The heating system in the security huts expelled steam and fumes. This attacked his respiratory tract and made him feel dizzy and faint.

The complainant wanted to be sent to a centrally heated site, to avoid exposure to these substances.

A complaint of discrimination on the grounds of disability.

Evidence of the complainant given under oath.

On 7/2/2025 the heating system in his security hut expelled steam and fumes. This affected his nasal passages and made him feel dizzy and faint. He told his line manager and the health and safety supervisor that he felt unwell. They did not take him seriously.

The respondent advised him to go to his doctor. This he did on 10/2/2025. His GP recommended that the complainant be moved to another hut/site. He was out of work on sick leave from 7-10 February. On 10 /2 2025, his line manager told the complainant that he did not have other sites for him. He went home on 10/2/2025.

When he returned to work on 14/2/2025, the respondent told him to go to the occupational health department. He went in to work on 19/2/02025, sought work, but there was no offer of work nor was he offered a roster.

The occupational health physician’s assessment of 17/2/2025 stated  that he was unfit to work pending a health and safety assessment of the hut in which he was working. That health and safety assessment of 17/2/2025 stated that he could leave the door of the hut open. He did not feel unwell when the door was open as smoke would be released, but it was very cold in winter.

The manager  relied on the occupational health physician’s second assessment of 27/2/2025 which based on the satisfactory health and safety assessment undertaken in the huts, stated  that he was fit to work. The complainant wanted to be sent to a centrally heated site.

He was unfit to work on 4/3/2025, because of anxiety and stress.

In response to the adjudicator’s question as to the nature of his disability, he stated that the heating system in the security hut blows fumes at him and makes him  feel unwell.

Complaint of victimisation on the grounds of race.

The complainant is a non- national. The complainant stated that the employer made no enquiries as to his recovery.

No Irish employee would have their hours reduced because of a health issue.

A named Irish employee who fell and injured himself received enquiries from  the employer

Complaint of victimisation.

The complainant stated in evidence that the protected act was the complainant’s doctor’s recommendation to the respondent on 10/2/2025 to move the complainant  to another site.

The acts of retaliation were that :

         The respondent did not give him a roster after 10/2/2025.

         He received no salary during the period of sick leave

         The complainant’s line manager reduced his hours from 48 to 18 a week on 4/3/2025.

  Cross examination of the witness.

The complainant states that In April 2025, after he had submitted his complaint, his hours were restored back up to 36 per week to the same site. At that stage he had no health issues.

 He has no issues with his employer currently.

The respondent denies that they discriminated against the complainant under any of the grounds contained in the Acts. They deny that they victimised him.

Complaint of discrimination on the grounds of disability.

The respondent received no medical evidence that the complainant is suffering from any disability.

Complaint of discrimination on the grounds of race.

The complainant has adduced no evidence of discrimination on the grounds of race and has failed to identify a comparator.

Evidence of Health and Safety Manager given under oath.

He has occupied this role for 10 years.

The medical submissions on behalf of the complainant do not refer to a disability.

On 5/2/2025 the complainant’s supervisor and the health and safety supervisor made a care visit to the complainant’s base. They went through documented check lists and asked the complainant to identify any hazards or concerns which he may have had with the work or the premises. The complainant identified no hazards.

On 6/2/2025, the complainant complained to his line manager of feeling unwell. He was referred to the site paramedic who did not detect anything wrong with the complainant. The line manager advised him to go to his GP.

It had been his third different location on this construction site.

He had first been deployed to the cab yard but there was a generator there, then he was moved to a barrier hut where there was no generator but an electric heater. There he complained of the fumes from traffic. He was then moved to a deliveries hut with a mains electric heater. That’s where he was on 6/2/2025. An assessment was done on that and 2 other huts where there were no generators.

The line manager asked the complainant how he was on the 7/2/2025, and the complainant advised that he had a GP appointment booked for 10/2/2025. His GP recommended a change to a centrally heated site. HR acknowledged receipt and asked the complainant to provide his GGP with a role profile so that problems / issues/ concerns could be identified.

The witness performed a risk assessment with the line manager and the health and safety supervisor on 17/2/2025. An occupational health physician’s report issues on 21/2/25, with an addendum of 27/2/2025 stating that the complainant was fit for all the regular duties of his role.

HR emailed the complainant on 28/2/2025, reassigning him to a different post and requested the complainant to supply them with reports of any illness which might cause his stated reactions.

At no point prior to or during the complainant’s employment did he identify underlying health issues which could trigger these reactions.

A Complaint of victimisation.

There is no basis for a complaint of victimisation.

Contrary to the complainant’s assertion that he was denied hours because he had made a request for reasonable accommodation, the complainant was on sick leave from 7/2/2025- 29/4/2025 and obviously could not be rostered hours.

The complainant was paid in accordance with his statutory entitlements for periods of medically certified leave.

He attended a return-to-work meeting on 3/3/2025. He refused deployment to any of the 3 aforementioned hubs – the yard hut, the deliveries hut and the barrier hut. He declined to accept the offer of 36 hours a week in the car park. The client wanted a security officer for 36 hours. He refused to come back to other roles where hours in excess of 36 were on offer to him. The complainant refused to sign a minute of that meeting. His contract specified 36- 48 hours a week.

Late March, the respondent tried to seek alternative sites which would offer 48 hours, but he did not have a full driving licence – a necessity for those sites.

After the submission of the complaint the complainant agreed to return to any of the three huts which he had previously refused, working 96 hours a fortnight.

Cross examination of witness.

In response to question concerning the reduction of his hours to 18 a week, the respondent disputes this and states he was offered 36 hours by his line manager. The witness stated that the complainant emailed him to state that he would be unable to come back until he was moved to a different site. Furthermore, the respondent was awaiting medical evidence and recommendations.

His GP stated that he could perform the duties of his role.

Evidence of the Health and Safety Supervisor given under affirmation.

He performs health and safety assessments on sites and assists with rostering.

He stated that the complainant was rostered for 6/2/2025. He was not on the premises from 7/2/2025.

He had been scheduled for 48 hours for the period 10-14 February, but they had to withdraw that offer/ schedule as they were awaiting a medical report.

Both the witness and the complainant’s line manager did an assessment of the hut in which he was working on 5/2/2025 and found no problems.

On 7/2/2025 the witness  contacted the manager to ascertain if other sites were available for the complainant, but these sites required a full driving licence which he did not possess.

They took all steps to accommodate him.

Evidence of the complainant’s line manager given under oath.

A check was done on the yard hut in February 2025 in which the complainant was assigned.  The windows and paintwork were checked. Regarding a complaint of smoke from the generator/ heater, this could not be the case as smoke emits outside from the back of the hut. A carbon monoxide test registered normal.

He asked the other security officers; they noticed nothing abnormal.

The complainant raised no issue until he was told that he could not use a portable campsite heater in the hut on 6/2/2025.  The witness told the complainant on 6/2/2025 to let the witness know when he was well. He didn’t withdraw the roster; the complainant did not turn up for work on the 7/2/2025.

When the complainant stated that he felt nauseous, he told him to go a doctor.

The complainant asked the witness on the 10 and 12 February about a roster, but he told the complainant that he could not roster him as he was out sick.

He didn’t roster him from 7- 10 /2/2025.

The complainant did not ask the witness on the 6/2/2025 or 12/2/2025 to move to another office.

Conclusion.

The respondent argues that the complainant has failed to raise a prima facie case of discrimination on the grounds of either race or disability, and his complaint cannot succeed.

The respondent denies that they victimised the complainant.

Preliminary issue.

The Appropriate statute.

In the notification to the parties, the complaint was listed as a complaint under the Equal Status Act 2000.

However, the narrative in the complaint form states that

 “I was discriminated against under the Employment Equality Act 1998.”

The complainant  selected discrimination on the grounds of disability and race, and he submitted a complaint of victimisation in  the WRC complaint form.

Submissions were received on the matter of discrimination on the grounds of disability and on victimisation under the employment Equality Acts 1998-2015.

The respondent raised no issue with the complaint proceeding to be  heard under the Employment Equality Act, 1998-2015.

The scope of an adjudicator to amend a claim was addressed in

Eddie  Byrne v Secto Services Limited, ADJ-00030841

In that case the complainant had lodged a complaint under the Minimum Notice and Terms of Employment Act, 1973, yet the narrative clearly described a complaint of constructive dismissal.

The adjudicator referred to the judgement of McGovern J in the case of County Louth Vocational Education Committee v The Equality Tribunal [2009] IEHC 370. McGovern J  stated

“I accept the submission on behalf of the respondent that the Form EEl was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EEl, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.”

The adjudicator held that the key phrase was a claim could be amended by the WRC adjudicator

“where the justice of the case requires it’

and it should be permissible to amend a claim

 ”as long as the general nature of the complaint remains the same”.

It was clear from Mr Byrne’s complaint form that he was referring to constructive dismissal in the body of his complaint as he stated, “Just to outline my grievance in relation to this application on grounds of Constructive Dismissal….”

The adjudicator held that that the complaint was  within the jurisdiction of a constructive unfair dismissal.

In the instant case the claim remains a complaint of discrimination on the grounds of disability and  race against the employer who came prepared to meet this complaint.

I find that the appropriate statute governing this complaint is the Employment Equality Act 1998-2015.I find that I do have jurisdiction to hear this complaint under the said Act.

Substantive Complaint.

A complaint of a failure to offer reasonable accommodation.

 The cognisable period for the purposes of this complaint extends from the 19/9/2024-18/3/2025.

I must now decide if the respondent has discriminated against the complainant by failing to provide the complainant with reasonable accommodation within the meaning of section 16(3) of the Act when they chose not to deploy him to a centrally heated space or an alternative site to the ones in which he was assigned.

The complainant maintained that the heating apparatus in the security huts in which he worked released fumes into the atmosphere causing  him dizziness and irritation in his respiratory tract. As a result, he was obliged to take sick leave due to the decision not to offer alternatives which did not pose a danger to his  health.

Relevant Law.

Section 16 provides a s follows:

“(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,”

I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Acts.

Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides

"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."

In the case of Melbury Developments and Valpeters,  (Det. No. EA AO917), the Labour Court expanded on  the meaning of section 85A as follows:

"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.”

The Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent.

Section 6 of the Employment Equality Act defines discrimination as:

“6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.”

Section 6(2) provides:

“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”).

A complainant making a complaint of discrimination on  the grounds of disability will have to demonstrate that they meet the definition of disability as  set out in section 2 of the Acts.

Disability is defined in Section 2 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 must firstly decide whether or not the complainant had a disability as set out in section 2 of the Act and if the respondent was aware of same.

The respondent does not accept that the complainant has a disability.

The complainant’s evidence concerning the existence of a disability is that on 6/2/2025, dizziness , a blocked nose and a headache were all triggered by the electrical and oil filled radiators in the cabin to which he was deployed.

The uncontested evidence is that the complainant displayed no such symptoms  until the point at which he was prohibited on 6/2/2025 from using his own portable gas, campsite fire in the hut.

The complainant was unreliable concerning the date on which he displayed these systems.

The medical evidence submitted on his behalf disclosed no disability. The GP’s statement stated that he was writing on behalf of Isaac to advocate for “move of office for him if possible”. He reports that the” heating system in the current office is causing complications to his health”

The doctor makes no diagnosis of a disability or an underlying condition which would cause these symptoms. The respondent sent a role profile for a security officer to the GP and asked him to identify any limitations or restrictions around the work environment and if he is fit to perform the role as presented. The respondent also stated that they did not understand what restrictions might obtain with the heating system. The GP identified no restrictions or underlying illness/condition incompatible with working the role as assigned,  or in the environment in which the complainant  worked. He stated that the complainant was fit to perform the duties of his role.

An occupational health assessment recommended a health and safety assessment of his workstations. Having received a clean bill of health on these sites, the occupational health physician failed to detect any underlying illness or disability that would render him unfit to perform the duties of a security officer and declared him fit to work on 27/2/2025 but did recommend that he engage with his GP who was to provide the employer with a diagnosis and management plan. This was not forthcoming. The complainant’s GP did submit certificates on the 4/3/2025 stating that the complaint was unfit for work from 4/3/2025- 25/3/2025 due to “medical issues”.

The next cert dated 18/3/2025, the date on which the complaint submitted his complaint to the WRC states that he is unfit for work for no specified period , due to “ stress and anxiety”.

I  am satisfied that the occupational health physician made no request for reasonable accommodation.

In A Worker v An Employer EDA 1927, the Labour Court, in finding that the complainant had not established a prima facie case of discrimination, highlighted that the respondent was

 “not provided with any medical evidence that the Complainant had a disability” and “could not have been expected to accept the Complainant’s assertions in the absence of medical evidence”.

 No medical evidence was submitted to the respondent to suggest either that the complainant’s  sensitivity and reactions  to the heating system was linked to a disability, or that he was physically unable to perform the functions of his role for a sustained period of time in the respondent’s work environment.

I find that  complainant submitted no medical evidence of any condition which would satisfy the definition of a disability found in section 2 of the Acts prior to the submission of his complaint form on 18/3/2025.

Given that the first step in a complaint of discrimination is to prove that you belong to one of the groups protected under the Acts, I find that the complainant’s evidence fails to support the contention that he had a disability warranting reasonable accommodation.

I find that he has not established a prima facie case in respect of the allegations of discrimination on the grounds of disability.

I find that his complaint cannot succeed.

A complaint of discrimination on the grounds of race.

The complainant is a German national.

This complaint is based on conjecture. The complainant states that an Irish person would be treated more favourably and accommodated.

He states that the respondent contacted an Irish employee who was out sick to enquire as to his progress but made no such contact with him.

But the uncontested evidence is that the line manager telephoned him on 7/2/2025 to enquire as to his health on and sought medical assistance for him

Referring back to Melbury Developments and Valpeters (Det. No. EA AO917, the onus is clearly on the complainant to establish facts , not speculative assertions ,on which to raise a prima facie case of discrimination.

I find that the complainant has failed to establish these required facts. The complainant therefore has failed to raise a prima facie case of discrimination on the grounds of race , and his complaint cannot succeed.

A complaint of victimisation

The complaint states that the acts of victimisation were the failure

 to pay him his salary while he was out on sick leave,

to assign him 36 hours in a setting which would not prompt dizziness or nasal problems.

The protected act was the complainant’s doctor’s notification to the respondent on 10/2/2025 to be moved to another site so as to eliminate the side effects/ ill health  from the heating system in the hut in which he was assigned. This  prompted the retaliation.

Relevant law.

The definition of victimisation is found in Section 74(2) which provides 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”

In retaliation for

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings concerning a claim of discrimination by a complainant,

c) notification of intention to pursue a complaint of discrimination.”.

Before considering if adverse treatment occurred and if so, whether or not it was it connected to the exercise of a protected act, a complainant must meet the provisions in section 74(2) of the Act.

The complaint’s doctor’s notification of the 10/2/2025 which the complainant identified as the protected is not the act of the complainant/ the employee, but a third party.

It is far removed from the obligations set out in section 74(2).

In Moriarty v. Dúchas DEC-E2003-013 the Equality Tribunal emphasised that the act which results in victimisation must be connected to a reliance on rights set out in section 74(2) of the Employment Equality Acts. The Equality Officer stated

 “It is necessary that a complainant demonstrate the connection between his or her actions in relation to defending entitlements under the Act and the treatment complained of”

I find no evidence which demonstrates that the complainant was defending his entitlements under the Act. It did not happen.

As the complainant did not exercise a protected act, it cannot be maintained that the representation resulted in adverse treatment, the second limb of the test set out in Barrett.

I find that the complainant’s evidence fails to prove that he has been victimised by the respondent in contravention of section 74(2) of the Act. This element of his complaint is misconceived.

I decide that  that the complainant has failed to raise an inference of discrimination on grounds of either disability or race and his complaint cannot succeed.

I decide that the respondent did not victimise the complainant contrary to section 74 (2) of the Acts.

Failure to raise a prima facie case.