ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00057459

	Complainant	Respondent
Anonymised Parties	A Sales Assistant	A Large Retail Store

Representatives

Philomena Vaughan, Aontu

Owen Keany BL, Instructed by Byrne Wallace

Complaint(s):

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00069313-003	13/02/2025

Date of Adjudication Hearing: 16/09/2025

Workplace Relations Commission Adjudication Officer: Valerie Murtagh

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings. Parties were sworn in at the commencement of the hearing. I have used my discretion to anonymise the names of the parties in the within decision on the basis of exceptional circumstances pertaining to the medical information disclosed with regard to the Complainant’s disability.

Summary of Complainant’s Case:

The Complainant was employed as a sales assistant with the Respondent. She commenced employment on 14 August 2024. The Complainant states that she worked her allotted shifts and did many extra shifts to help out the Respondent. She states that she was very accommodating to the company particularly at pressurised and busy periods.

The Complainant states that she has a heart condition since she was a baby. She states that she had heart surgery as a child and again at the age of 16 when she had a stent inserted.

The Complainant states that at her interview with the Respondent, she informed the manager L that she had a disability. She states that she advised L that she had a heart condition and had an operation when she was 16. She stated that would need to attend some medical appointments during the year. The Complainant states that L assured her that this was fine and she was hired and started work on 14 August.

The Complainant states that she got Covid in September 2024 and this led to a secondary infection, by January she was sick with upper pulmonary infection. The Complainant states that this did not clear and she ended up having to go off sick from 17 – 24 January with glandular fever, kidney infection, sinus illness and tonsillitis. She states that she missed 5 days in September and 7 days in January.

The Complainant states that she is normally not this sick but her doctor advised her that her immune system was ran down due to Covid.

The Complainant states that she was brought to the office by managers F and O and given notice of her dismissal. The Complainant states that the manager, O, stated it was due to her sick leave and he couldn’t have someone like her working in the company being in and out of work. The Complainant stated to her manager that she was 6 years in her last job and there were no issues and she had very little sick leave.

The Complainant states that she requested reasonable accommodation for her disability and stated that she had advised the person who interviewed her named L prior to commencement in the position that she had a disability relating to a heart condition.

The Complainant states that she feels that she was treated very unfairly and discriminated against by the Respondent. She states that she was not given reasonable accommodation on the basis of her disability. The Complainant states that she requested of her managers if the probation period could be extended for a further five months on the basis of exceptional circumstances but they would not accede to this request.

Summary of Respondent’s Case:

The Complainant commenced employment with the Respondent on 14 August 2024 as a Sales Assistant. The contract of employment provided for a 6 month probationary period, during which the employment could be terminated on the basis of one weeks’ notice or payment in lieu thereof. It also provided that the Respondent’s disciplinary procedure did not apply during the probationary period.

The Complainant was absent on sick leave between Friday 6 September and Tuesday 10 September 2025 inclusive. The Complainant provided a medical certificate stating that she was unfit for work during this period. In a return to work interview held on 11 September with FM, HR Business Partner, the Complainant confirmed that she had been unwell with Covid-19. The Respondent states that at no point during this meeting did the Complainant indicate that her absence was due to the existence of an underlying condition or disability.

The Complainant was absent from work on sick leave on Wednesday 8 and Thursday 9 January 2025. The Complainant provided a medical certificate stating that she was unfit for work during this period. In a return to work interview held on Friday 10 January, she stated she was absent due to a upper respiratory tract infection. During the course of this meeting, the Complainant stated that she suffered with cardiac asthma and was undergoing tests for asthma.

The Complainant was again absent from work on sick leave between Friday 17 January and Friday 24 January inclusive. The Complainant provided a medical certificate stating simply that she was unfit for work during this period. No further details were provided. The Complainant was then on prebooked annual leave until Tuesday 4 February 2025.

On her return from annual leave on 4 February the Complainant met with Mr M. The Respondent states that at no point during this meeting did the Complainant indicate that her absence was due to the existence of an underlying condition or disability.

Later on 4 February 2025, the Complainant was asked to attend a meeting with Mr M and Mr D, Store Manager. Mr D informed the Complainant that she had been absent for 12 days since she began work the Respondent and that this absent rate was unacceptably high during her probation period. As a result the decision had been made to terminate her employment and Mr D informed her of this and confirmed that she was being given one weeks’ notice. The Complainant did not dispute her level of absence and, again, at no point did she maintain that her absence was due to the existence of an underlying condition or disability.

The Complainant’s employment with the Respondent came to an end on 10 February 2025.

COMPLAINT UNDER THE EMPLOYMENT EQUALITY ACT 1998

The complaint form submitted by the Complainant on 13 February 2025 (the “Initial Complaint Form”) is unclear, as shown by the fact that the WRC was required to write to her on 24 February following receipt of the Initial Complaint Form, in order to clarify which specific complaint the Complainant was making. The Initial Complaint Form contains a narrative on the fourth page. On page 13, the Complainant has selected that she was discriminated on the grounds of disability by the Respondent by “failing to give me reasonable accommodation for a disability” and “other”. On the following page she again selected that she was discriminated against by the Respondent by “failing to give me reasonable accommodation for a disability” and “other”.

The Respondent states that, the Complainant in her second complaint form, which was submitted to the WRC on 6 March 2025, has claimed that she was dismissed for a discriminatory reason on the grounds of disability.

LEGAL SUBMISSIONS

Disability for the purposes of the Act

The Complainant has claimed that she has a heart condition which is a disability. The Respondent states that the Complainant produced no evidence which might indicate any ongoing effects of this heart condition or of a link between any heart condition and her sickness absences.

The Respondent states that the Complainant was not dismissed due to any disability but for excessive absences due to individual instances of sick leave during the course of her probation.

The Complainant’s medical certificates during her sick leave did not refer to a specific illness or condition. The Complainant has stated that her September 2024 sick leave was due to Covid-19, with the periods of sick leave in January 2025 being due to upper pulmonary infection and a pulmonary infection / tonsillitis / potential glandular fever, respectively.

The Respondent submits that these illnesses are not a disability for the purposes of the Act, and that there is no evidence from the Complainant that they were related to her heart condition. It states that there is no evidence that these illnesses were chronic in nature, as is shown by the fact that the Complainant returned to work relatively shortly after each period of absence.

Case Law

The Act in its amended form implements Council Directive 2000/78/EC, which establishes a general framework for equal treatment in employment and occupation.

The CJEU in Chacon Navas v Eurest (C-13/05) examined the concept of disability as referred to in Directive 2000/78/EC, where an employee had brought a claim for discriminatory dismissal on the grounds of disability having been dismissed following absence on sick leave. The Court stated in paras 43 – 46 of the judgement:

“Directive 2000/78 aims to combat certain types of discrimination as regards employment and occupation. In that context, the concept of ‘disability’ must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life.

However, by using the concept of ‘disability’ in Article 1 of that directive, the legislature deliberately chose a term which differs from ‘sickness’. The two concepts cannot therefore simply be treated as being the same.

Recital 16 in the preamble to Directive 2000/78 states that the ‘provision of measures to accommodate the needs of disabled people at the workplace plays an important role in combating discrimination on grounds of disability’. The importance which the Community legislature attaches to measures for adapting the workplace to the disability demonstrates that it envisaged situations in which participation in professional life is hindered over a long period of time. In order for the limitation to fall within the concept of ‘disability’, it must therefore be probable that it will last for a long time.

There is nothing in Directive 2000/78 to suggest that workers are protected by the prohibition of discrimination on grounds of disability as soon as they develop any type of sickness.

It follows from the above considerations that a person who has been dismissed by his employer solely on account of sickness does not fall within the general framework laid down for combating discrimination on grounds of disability by Directive 2000/78.”

Similarly in Jette Ring v Dansk (C-335/11) the CJEU stated in paras 38 – 42 of that judgement:

“…the concept of ‘disability’ must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.

In addition, it follows from the second paragraph of Article 1 of the UN Convention that the physical, mental or psychological impairments must be ‘long‑term’….

It must therefore be concluded that if a curable or incurable illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one, such an illness can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78.

On the other hand, an illness not entailing such a limitation is not covered by the concept of ‘discrimination’ within the meaning of Directive 2000/78. Illness as such cannot be regarded as a ground in addition to those in relation to which Directive 2000/78 prohibits discrimination”

The Labour Court considered and endorsed the above judgements in Hickey v Houses of the Oireachtas (EDA 1918) finding that:

“The Court is bound by the judgment of the Court of Justice in Case C-335/11. It is clear from the extract quoted above from that judgment that a relatively short illness, such as that experienced by the Complainant in this case, does not amount to a disability that hinders “the full and effective participation of the person concerned in professional life on an equal basis with other workers”.

No medical report was opened to the Court to establish clearly and unequivocally the extent and the duration of the Complainant’s illness or that that illness was a chronic illness within the meaning of paragraph (b) of the definition of “disability” for the purposes of the Act…

Having regard to all of the foregoing, the Court finds that the Complainant has not established a prima facie case that he had a disability within the meaning of the Act.”

Burden of Proof

Section 85A of the Act sets out the burden of proof which must be met by a complainant in a claim for a breach of the Act:

(1) 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.”

In the case of Southern Health Board v Mitchell [2001] ELR 201 the Labour Court considered the

extent of the evidential burden imposed on a complainant by section 85A and held:

“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 these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

It follows that a Complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, the Court stated:

“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.”

In the case of Valpeters v Melbury Developments Ltd [2010] ELR 64 the Labour Court stated however that:

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

The onus rests on the Complainant to establish primary facts from which an inference of discriminatory treatment on the grounds of disability can be presumed and it is only if these primary facts are established to the satisfaction of the Adjudication Officer and they are regarded by the Adjudication Officer as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent.

The Complainant has failed to establish that the illnesses which resulted in her sick leave and which were manifestly temporary in nature constituted a disability for the purposes of the Act, and has failed to establish a prima facie case of discrimination on the grounds of disability.

The Complainant has also failed to establish that she requested or required any reasonable accommodations in order to be able to carry out her work due to any alleged disability, or that the Respondent was on notice of any such requirement.

Findings and Conclusions:

I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.

It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently 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. In this regard, I am cognisant of the Labour Court case in Arturs Valpeters v Melbury Developments [2010] 21 ELR 64.

The complainant has alleged that she was discriminated against on the grounds of her disability by the respondent. Disability” is defined in Section 2 of the Acts as meaning –

“(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”.

Based on the information before me, I find that the Complainant has a disability within the meaning of the Acts.

The complainant submits that (i) she was discriminated against on grounds of her disability (ii) there was a failure by the respondent to provide her with reasonable accommodation and (iii) she was discriminatorily dismissed.

Section 16 of the Acts provides:

“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,

(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 herself or herself;”

I am guided by the Labour Court determination in the case of Humphrey’s v Westwood Fitness Club EED037 which was upheld by the Circuit Court. The Labour Court stated:

“At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition…… In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently. Secondly, if it is apparent that the employee is not fully capable Section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which the employee can become fully capable. The Section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources. Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

Dunne J. in the Circuit appeal stated that the there is a legal obligation under the Employment Equality Acts for an employer to take advice from either the complainant’s own doctor or an independent doctor where there are concerns in relations to the health of a worker.

Based on the information before me, I find that the Complainant has established that she has a disability within the meaning of the definition within the Act. The Complainant explained that she had surgery when she was 16 years old and had a stent inserted. She explained that she has ongoing assessments with her consultant with regard to her condition.

Having heard the testimony at hearing, I find that the Complainant raised the issue of her disability at the interview stage with manager L, in that, she informed L that she had a heart condition and had a stent inserted at age 16 and sometimes got infections as a result. The Complainant stated that she informed L, at the interview, that given her condition she would require time to attend medical appointments during the year to which she was advised by L that there was no issue with same. I found the Complainant to be a credible witness and her evidence was cogent and convincing.

Based on the evidence adduced, I am satisfied that the Respondent was put on notice that the Complainant had a disability. It is noteworthy that the Respondent at the hearing did not dispute that the Complainant had a heart condition.

The Complainant explained that because of her heart condition when she got sick in January due to having contracted Covid previously in September, her immune system was very low.

I note that based on a back to work meeting dated 10 January with her manager F, the report states “absent on Wednesday 08/01/25 until Friday 10/01/25 – 2 days due to URTI. Unable to attend work for the above reason. Went to GP who prescribed steroids. Suffers with Cardiac asthma and is undergoing tests for asthma. Is awaiting these results as of now. Breathing is better now than it was and the Complainant has returned to work today. “

The Complainant states that she became very unwell and had to go on sick leave on 17 January. She states that her GP informed her that her immune system was completely depleted. She states that she was back and forth to the Doctor and was advised that she had upper pulmonary infection, suspected glandular fever, kidney infection, sinus illness and tonsillitis. She states that she was advised by the Doctor to rest and was prescribed steroids and antibiotics.

I note that on 4 February, the Complainant was called to a meeting wherein she was informed that she was being let go due to sick absences. The Complainant stated in her testimony that at said meeting, she requested management to review its decision to dismiss on the basis that she had worked very diligently for the company and did extra shifts when requested particularly in busy periods and her work was of a high standard.

The Complainant stated that she was in her previous job for over 6 years and there were no issues and she had very little sick absence. The Complainant stated that it was unfortunate but after contracting Covid, she got infection after infection and complications and this was a rare event but that due to her heart condition, it takes longer to clear the infections from her body. The Complainant argued that she had a weakened immune system and that this is also a disability within the meaning of the Acts.

I accept the evidence given by the Complainant wherein she stated that due to her disability, she was more susceptible to infection (particularly after having contracted the Covid virus) than a person without a disability.

Both the Labour Court and the Workplace Relations Commission have held that disabilities which are of a temporary nature can come within the ambit of protection of the Acts. The primary reason relied on in these decisions is the express reference within the definition to a disability which “previously existed but no longer exists” in section 2 of the Acts.

I am also cognisant of the Labour Court case in A Government Department v A Worker EDA 094 wherein the Court stated “It is noteworthy that the definition is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label of which it is ascribed thereto. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded. Moreover the classification of a condition, illness or disease as a disability is not limited by its temporal affect on the sufferer”.

The Complainant states that in relation to reasonable accommodation, her manager had the option to extend the probation period for a further five months on the basis of exceptional circumstances but did not entertain this opportunity. The Complainant states that she explained to her manager that she had been in her previous job for over 6 years and there were no issues. The Complainant states that she requested management to review its decision to terminate her employment on the basis that she undertook extra shifts, stayed late at the store when required, was a conscientious worker and worked well within the team.

Article 5 of Directive 2000/78 established a general framework for equal treatment in employment and occupations. This Article imposes a positive duty on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, as provided in Section 16(3) of the Acts.

The duty to provide reasonable accommodation must be ascribed a broad ambit. The ultimate test is that of reasonableness and proportionality. That involves putting a number of considerations into the balance including the practicability of what may be required, the costs involved, the disruption that may be caused to the service that the employer provides and the consequences for the disabled person of not providing the accommodation required.

In circumstances where an employer is considering terminating the employment of a person with a disability, there is an obligation on them to consider “reasonable accommodation”. This obligation carries with it a concomitant obligation to make an informed and considered decision on what is or is not possible, reasonable and proportionate.

I am cognisant of the Labour Court case in A Worker v A Hotel EDA 0413 wherein the Court stated: “The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability.”

I find that the Respondent has not been proactive in this matter nor has it carried out a full assessment of the Complainant’s needs. It has not complied with the requirements set out in the Labour Court determination in Humphrey’s v Westwood Fitness Club EED037 wherein it states “In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.” Therefore, in accordance with Humphries and in A Worker v An Employer, a failure to adequately consider all available options on how a disabled person can be accommodated can amount to a failure to discharge the duty to provide reasonable accommodation. Those cases also indicate that an enquiry in that regard can only be regarded as adequate if the affected employee is afforded an opportunity to influence the decision that the employer ultimately makes.

Having carefully examined all the evidence adduced on this matter, I find that the Complainant has established that there was a failure on the part of the Respondent to adequately consider all available options in order to discharge its duty to provide reasonable accommodation to the Complainant in order to allow her remain in employment.

I find that the Complainant has demonstrated a causal link between her stated disability and the fact that she was dismissed. Consequently, I find that she has raised a prima facie case of discrimination on grounds of her disability. I find that the Respondent has failed to rebut said case.

Based on the evidence heard I am satisfied that there was a failure by the Respondent to provide reasonable accommodation to the Complainant.

I find that the Complainant was discriminatorily dismissed by the Respondent on grounds of her disability.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I find that the Complainant was discriminated against on grounds of disability by the Respondent in relation to her dismissal. I find that there was a failure by the Respondent to provide reasonable accommodation to the Complainant.

I order the Respondent to pay the Complainant €6500 in compensation for the effects of the discriminatory treatment.

I order the Respondent to carry out a review of its procedures and training to ensure that company policies are in compliance with the Employment Equality Acts.

Dated: 05-01-26

Workplace Relations Commission Adjudication Officer: Valerie Murtagh

Key Words:

Employment Equality Acts, disability, reasonable accommodation, discriminatory dismissal