EDA2571

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00043776 (CA-00054766-001).

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 11 July 2023.

Labour Court hearings took place on 30 September and 1 October 2025.

The following is the Determination of the Court:

DETERMINATION:

1. Background to Appeal

This is an appeal by Gráinne Flannery against a Decision made by an Adjudication Officer (ADJ-00043776, CA-00054766-001, dated 8 June 2023) under the Employment Equality Act, 1998 (“The Act”) in relation to a complaint made against her former employer Mercer (Ireland) that she discriminated against on the protected grounds of age and disability. The Adjudication Officer found the complaints were not well founded.

Ms Flannery appealed the decision to the Labour Court on 11 July 2023. A hearing of the appeal was partially heard, however, due to the unavailability of a Court member, the division assigned to hear the appeal ceased to exist, and a newly appointed division of the Court was assigned to hear the appeal afresh. That division of the Court heard the appeal and a linked appeal UDD2537 on 30 September and 1 October 2025. Ms Flannery availed of the use of stenographer during the hearing. 

For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Flannery is referred to as “the Complainant” and Mercer (Ireland) is referred to as “the Respondent”.

2. Summary of Complainant’s Position

The Complainant has a disability for the purposes of the Act, asshe has a hearing impairment.

The Complainant submits that she was subject to discrimination on three occasions:

The first incident occurred on 29 November 2021 and related to the conduct of interviews held by the Respondent. The interview was scheduled as a face-to-face meeting with the hiring manager, however, another manager joined the interview by zoom and asked her questions. The Complainant submits that she was denied reasonable accommodation, such as subtitles for the meeting. The Complainant uses lipreading so was disadvantaged by the difficulty of doing so through a computer screen.

The second incident occurred on 12 January 2022 at an occupational health assessment when the Complainant was asked inappropriate questions by a member of staff employed by the occupational health service provider and her hearing disability was mislabelled as a medical issue.

The third incident occurred on 09 January 2023 when the Complainant requested contact details for Dr. ‘A’ after being asked to attend an occupational health assessment. In response she was provided with a phone number to ring.  The Complainant cannot communicate by phone as she relies on lip reading. The Complainant contends that the failure to provide her with an email address is a failure on the Respondent’s part to provide her with reasonable accommodation for her stated disability.  The Complainant submits that there is an obligation on employers to consider and provide reasonable accommodation, which did not happen in her case.

3. Summary of the Respondent’s Submission

The Respondent rejects that the Complainant was subject to discrimination under the 1998 Act.

Most matters raised by the Complainant took place more than 12 months prior to the submission of her complaint to the WRC and fall outside of the 6-month statutory time frame set down in the Act.  There can be no consideration of any aspect of the Complainant’s complaint which predates 31 August 2022.  No application was made to extend the timeframe for considerate of the complaints.

The only matter within time is an alleged failure of the Respondent to provide contact details for the occupational health doctor.

Without prejudice to the preliminary matter relating to time limits, the Complainant has failed to establish facts of sufficient significance such as to give rise to an inference of discrimination and has failed to establish a prima facie case of discrimination on the grounds of age or disability. 

Strictly without prejudice to the foregoing, the Respondent did not discriminate against the Complainant as alleged. There is no evidence of any act or treatment that occurred in the 6-month period prior to the lodgement of the complaint to the WRC on 30 January 2023.

The Complainant submitted her complaint form to the WRC on 30 January 2023.  It is unclear what discriminatory act is alleged to have taken place on 19 January 2023.

The Respondent submits that the Complainant is retrospectively interpreting and seeking to characterise normal engagement and interactions in a discriminatory way and has sought to apply discriminatory intentions and motivations to routine workplace practices. 

4. Relevant Law

The statutory time limits for consideration of complaints set down at Section 77(5) of the Act, states as follows:

• (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
• (b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

Section 16 of the Act sets out the nature and extent of employer’s obligations in certain cases.

16.— (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;

Section 85A (1) of the Act provides: -

85A.— (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.

5. Deliberations

The Complainant contend that she was subject to discriminatory treatment on the ground of her age and because of her stated disability. The Complainant lodged her complaint under the Act to the Workplace Relations Commission (WRC) on 30 January 2023. Therefore, the relevant period for consideration by the Court in assessing a contravention under the Act, having regard to the six-month statutory time frame set down at Section 77(5) of the Employment Equality Act, 1998 is the period from 31 July 2022 to 30 January 2023. That timeframe can be extended from six months to twelve months, for reasonable cause.

Section 85A provides that where a Complainant establishes facts from which discrimination may be inferred it then falls to the Respondent to prove that the principle of equal treatment was not infringed. The established test for ascertaining if the burden of proof shifts to the Respondent was set out by this Court in Mitchell v Southern Health Board [2001] E.L.R. 201. That three-tier test provides: -

1)    It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination.  If the Complainant fails to do so. he or she cannot succeed.

2)    If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3)    If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent, (Mitchell v Southern Health Board [2001] ELR 201)

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that: -

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

No evidence was submitted by the Complainant that she was subject to discrimination on the ground of her age.

The only complaint that falls within the statutory timeframe set out in the Act is the allegation by the Complainant that the Respondent failed to provide her with reasonable accommodation on 9 January 2023, when she sought contact details for the medical doctor working in occupational health service.

The Complainant contends that the Respondent failed to provide her with reasonable accommodation on 9 January 2023. No witness evidence was proffered by the Complainant in relation to her complaint under the Act. The undisputed facts are as follows:

The Complainant has a disability for the purposes of the Act. The Complainant was to attend an occupational health appointment on Thursday 19 January 2023.

The Complainant wished to contact the occupational health physician and emailed the Respondent’s HR department with a request for the doctor’s contact details. The request made by the Complainant on 6 January 2023 via email states as follows:

“Hello (named person),

Thank you for your email.

Could you please forward my (doctor’s name) contact details?

Have you given her any of me details, if so please let know.

Kind regards

Gráinne “

The HR representative replied by email on 9 January 2025 as follows: -

“Hi Grainne,

Thanks for your email. I don’t have the Dr’s own contact details but I attach the phone number of the clinic who may provide this to you. XXX XXXXXX

On your own details, we will send a short referral prior to the appointment as per the usual practice.

Could, you confirm if you will attend.”

The Complainant replied by email stating “To accommodate a deaf person, I am requesting an email address as contact preference please”. In reply, the HR representative to the Complainant the email contact details, requested.

The Complainant contends that the provision of telephone contact details was not suitable for a person with hearing difficulties. As a result, she contends that the failure of the Respondent to provide her with an email address for the occupational health doctor on 9 January 2025 constitutes discriminatory treatment as the Respondent failed in its obligation to provide her with reasonable accommodation for her disability.

The Court notes that the matter was remedied immediately.In circumstances where the error was immediately rectified, and where the the Respondent provided the Complainant with the email address requested, the Court finds that the Complainant has failed to establish primary facts from which it could be inferred that she was subject to less favourable treatment or discriminated against on the ground of disability.

In any case of alleged discrimination, the Complainant must first prove the primary facts upon which she relies to advance a claim of discrimination. If the primary facts are proved, or are admitted, the Court must be satisfied that they are of sufficient significance to raise a presumption of unlawful discrimination such that the burden of proof shifts to the Respondent. Having regard to the oral and written submissions made, the Court finds that the Complainant has not established sufficient facts to ground her complaint that was subject to less favourable treatment or discrimination on the ground of her disability.

In this case, the Complainant has failed to establish a prima facie case of discrimination. The Court therefore finds that the Respondent did not discriminate against the Complainant on the disability ground in contravention of the Act.

6. Finding

The Court determines that the Complainant was not discriminated against on the ground of disability.

The Court determines that the Complainant was not discriminated against on the ground of her age.  The Adjudication Officer’s Decision is upheld, and the appeal fails.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
5 January 2026	Deputy Chairman

NOTE

Enquiries concerning this Determination should be in writing and addressed to Ms Therese Hickey, Court Secretary.