EDA2576

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045266 ADJ-00047456 (CA-00055950-001).

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 29 April 2024. 

Labour Court hearings took place on 19 November 2024 and 5 November 2025. 

DETERMINATION:

1. Background to the Appeal

This is an appeal by Edward Bourke of a Decision of an Adjudication Officer made under the Employment Equality Act, 1998 (“The Act”) in relation to a complaint against his employer, Kilkenny County Council, that he was discriminated against on the ground of disability. The Adjudication Officer found that his complaints of discrimination and victimisation were not well founded.

Mr Bourke appealed that decision together with two linked appeals EDA2575 and EDA2577 to the Labour Court on 29 April 2024. The three appeals were heard together. They relate to a continuum of the same alleged acts of discrimination on the disability ground.

The hearing was conducted over two days on 19 November 2024 and 5 November 2025. The parties lodged supplementary submissions in advance of the second hearing date addressing whether Mr Bourke had a disability for the purposes of the Act. 

For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Bourke is referred to as “the Complainant” and Kilkenny County Council is referred to as “the Respondent”.

2. Background to the complaint

The Complainant worked as a qualified lifeguard and a fitness and health instructor with the Respondent until 2009, when he was redeployed to the Traffic Department as a Cash Collection and Frontline Maintenance Officer. He was graded as a Roads Foreman for salary purposes.

In September 2022, the Council proposed to redeploy the Complainant to an alternative role arising from a decision to replace pay and display machines with cashless devices. The Complainant was absent from work on sick leave from 22 November 2022.

3. Summary of Complainant’s Case

The Complainant has a recognised disability within the meaning of the Act. The Complainant suffers from work related stress, anxiety, panic attacks and depression due to stress at work. This can be classified as mental health issues or stress related disorder.  The Respondent has full knowledge of the existence and severity of his disability.

The Complainant was discriminated against by the Respondent in relation to his terms and conditions of employment, access to employment and training. The Complainant was victimised on the ground of disability. The Respondent failed to provide reasonable accommodation and appropriate measures.

Further the Respondent has victimised the Complainant by repeatedly offering unsuitable positions; failing to offer comparable positions and by placing conditions on his return to work. Repeated attempts were made by the union to resolve the issue to no avail.

The Complainant was ignored for long periods of time. He was left completely in the dark as to whether he was going to return to work. There was no real consultation, no agreement and no choices open to the Complainant. The only training offered to the Complainant was violence and aggression training which would do nothing to prevent the conflict the Complainant was trying to avoid given his anxiety.

4. Summary Position of the Respondent

The Complainant has not established a prima facie case of discrimination as required under the Act.

The Complainant was absent from work from 9 November 2022 with his GP certifying his absence as “work related stress”. This is not classified as a disability under the Act.  The Complainant’s absence occurred after his position being made redundant and his being redeployed to another role. The Complainant was unhappy that his post was made redundant and was subsequently unhappy about being redeployed to another post. He was absent from work until his return to work on 7 May 2024.

When the Complainant’s role was made redundant, the Council sought to engage with him to redeploy him into another role and to support and accommodate him in his return to work in relation to both an interim measure and permanent post. He never raised any issues related to a disability or sought any specific “reasonable accommodations” in relation to any disability during the reference periods, apart from seeking to be fully paid until his IR issues relating to his redeployment are resolved. This was raised by the Union on 28 March 2023 and responded to on 6 April 2023. He was offered and accepted EAP (Employee Assistance Programme) support in relation to his absence and to support him in his return to work.

The Council are not aware of how or when the claimant was discriminated against.

No comparator is identified by the Complainant in his three WRC complaints which he submitted to the WRC on 6 April 2023, 25 August 2023 and 20 November 2023 respectively. The Complainant has not established a prima facie case of discrimination during the 6-month period prior to submitting each complaint to the WRC. He did not engage directly with the Council during the relevant reference periods. The Complainant has not provided details of when he was discriminated against compared to a relevant comparator and has not established “that this treatment is less favourable than the way someone who is not covered by the discriminatory ground is, has been or would be treated”.

Section 16 of the Act places an obligation on employers to provide appropriate measures to assist an employee with a disability to undertake their role.  The Complainant was on certified sick leave for the duration of the period encompassed by the claims. In such circumstances where the Complainant was not certified fit to work, and no reasonable accommodation was sought by him (except once in relation to paying him until his redeployment could be agreed) to assist him with his return to work, the claim that he was denied reasonable accommodation cannot be sustained.

It is for the Complainant to prove, on the balance of probabilities, the primary facts on which he is relying in seeking to raise the presumption of unlawful discrimination.  The Complainant has failed to provide details of his complaints in relation to what discrimination occurred, the date it occurred on as well as how and when this was alleged to have manifested on that date. The Council refutes that any alleged discrimination occurred.

5. Testimony

The Court heard witness testimony from Edward Bourke (the Complainant), Michael Arthurs (former HR Manager) and Marie Phelan (HR Manager) with the Respondent.  

6. Evidence of the Complainant

The Complainant has 31 years’ service with the Respondent. He worked as a fitness and swim coach for sixteen years, until the swimming pool closed.  In 2009 he was appointed as a Cash Collection and Frontline Maintenance Officer, which was a role specially created for him.  He was graded as a “Roads Foreman” for salary purposes but also worked indoors.

In 2022, he heard that the Council planned to contract out the service from a friend. He was not consulted as part of the review process. It was a very stressful time.  In September, he was advised that his job was to go and that he along with his supervisor, Pat Boyd, would be redeployed. Pat Boyd is the comparator for the purposes of the complaint; his job was due to be made redundant the following April 2023.

The Complainant told the Respondent that he could not do the role of Traffic Warden. He was too well known in Kilkenny, as a former ten-time handball champion. He could not cope with the mental stress of the job engaging with family and friends. His job was privatised, and he was left standing in the rain with nothing to do for eight weeks. It was an unbelievably stressful time.

On 4 November 2022 he received a letter from HR confirming his redeployment to the role of Traffic Warden and instructing him to attend for work at 8.30am on 11 November 2022.  He was on sick leave at the time.

While on sick leave, the only other roles offered to him were a craft worker role, which required qualifications, a driver A role which required a licence, and a sweeper role.  The Complainant wanted a comparable job, with a meaningful role. Although paid an outdoor rate, he was never an outdoor member of staff. Being put out on the road at age 53 was a demotion.

The Respondent refused to consider him for other roles. There was a vacancy for a Head Gardener and a temporary grass cutting role. The Respondent said that there were no vacancies in the cemetery, and that he would have to apply for vacancies in the housing section in the same way as everyone else, even though he had admin skills.  The Respondent insisted that if he wanted another job, he had to first return to work as a traffic warden. The Respondent relented and offered him a ‘Driver B’ role and lifted the requirement for him to work as a traffic warden pending getting the licence to become a Driver B.

Under cross examination, the Complainant said that he was absent from work due to stress, anxiety and depression. He could not provide specific dates on which he was discriminated. He was discriminated against, as everything offered to him was a demotion or had a condition attached. He requested upskilling through his union, which was never offered.  He was treated less favourably than his comparator, who was a colleague whose role was not made redundant. That colleague’s role was supposed to be made redundant in April 2023.  As he was at work, he was able to fight his corner. The Complainant could not do the same, as he was absent on sick leave.  He accepted that he was represented by a union during this time. When asked when and how he was victimised, he said he could not provide specific dates but that he was victimised by the Respondent when they offered him inappropriate jobs.  When asked what reasonable accommodation he sought, the Complainant said that he requested a comparable role and the roles offered to him were not comparable. He denied setting down conditions about his return to work.

The Complainant accepted that his medical certificate stated, ‘work related stress’. He accepted that his employer was not notified about his anxiety and panic attacks, which he said fall under the umbrella of work-related stress.  He remains on medication for depression. He discussed everything with the occupational health provider, who were wonderfully supportive. When asked how the Respondent was to know about his disability if that information was not contained in the occupational health report, the Complainant said he did not know. 

The Complainant did not have a role to return to when on sick leave. The said that he could not fight his corner when absent on sick leave, as he “was out of sight, out of mind”. He accepted that he was represented by a union during this time. He agreed that he did not apply for any open or promotional posts in 2023.

7. Evidence of Mr Michael Arthurs

Mr Arthurs was the HR Manager up until January 2023. He outlined the business rationale for restructuring the traffic section. The Complainant’s role was the only role impacted, as there was no longer a role for a front-line maintenance officer.  A period of consultation commenced which was not a fait accompli. The Respondent offered the Complainant redeployment to the role of Traffic Warden. He did not want the Traffic Warden role, as he said that he knew people in the town. In October, the Union said that they were disengaging from consultation process. The Council had to move on, so confirmed the Complainant’s redeployment to the role of Traffic Warden to him on 4 November. The Complainant went on sick leave thereafter and submitted a certificate dated 9 November 2022.

Under cross examination, Mr Arthurs said he could not recall any engagement with SIPTU about the traffic supervisor role being redundant, as the role of traffic supervisor remained in situ. He accepted that in a letter from SIPTU dated 8 November 2022, the Complainant’s union representative requested that any further correspondence be sent to SIPTU as she was worried about him. He was aware that the reason for the Complainant’s absence was work-related stress. He referred the Complainant to Occupational Health in January 2023. He could not recall precisely what he said in the referral letter.

8. Evidence of Ms Marie Phelan

Ms Phelan took up the role of HR manager on 16 January 2023. 

In January 2023 the Occupational Health Physician had recommended a review of the Complainant within 6 weeks of that date. This did not happen within that timeframe as the parties were engaged in discussions on redeployment options. Ms Phelan wrote to the Complainant’s union official on 1 March 2023 outlining three roles that the Council deemed suitable as redeployment roles - a Light Equipment Operator; Craftsperson; and Driver A. The union official replied on 3 March 2023 to say that any option proposed must be a comparable role. Ms Phelan did not recall any request for reasonable accommodation at that time.

In further correspondence on 28 March 2023, the union asserted that the Complainant was being discriminated against on the disability ground and that he was entitled to reasonable accommodation to enable him to return and continue in employment. This was the first time mention of reasonable accommodation. By reply on 6 April Ms Phelan stated that the Council had engaged with the Complainant since August 2022 about his redeployment and was working with the union to provide him with reasonable accommodation. She further stated that the Council did not consider its action to be discrimination on the disability ground and that the Council had written to the Complainant on 16 January about availing of counselling sessions as part of the Employee Assistance Programme and that she had requested a further occupational health assessment.

On 11 April 2023 the union sought further details in relation to a Driver A and Driver B positions. On 20 April, Ms Phelan advised that the Council could arrange training for the Complainant to undertake Driver A training if he wished to take up that position and that he could return to work to a shorter working week for a period. He could not be appointed to a Driver A position without a qualification. There was no reply to that proposal.

The Complainant was assessed by an occupational health physician who found that his issues were mainly an IR/HR related and recommended further engagement. There was various correspondence with the union and the parties engaged in mediation in the following months.

Under cross examination, Ms Phelan said that she was not aware that the Complainant suffered from depression. His absence from work was due to work related stress. She was aware of the mental health difficulties from his union official’s correspondence in March 2023. On receiving that correspondence she referred the Complainant for an occupational health assessment, as she felt that the occupational health provider would explore why he was not at work and make any recommendations. She also encouraged him to access the Employee Assistance Programme. There was nothing in the medical reports regarding any reasonable accommodation required.

Ms Phelan accepted that she was not fully aware of the Complainant’s full work experience and was not aware that he was a qualified swim instructor and coach. In response to questions about possible redeployment options, Ms Phelan said that she did not accept that the Light Operator role would be a demotion for the Complainant, as his terms and conditions of employment were ring fenced.  When asked why the craft role was proposed to him when the Complainant was not qualified for the role, Ms Phelan said that she shared it with him as it was a vacant position.

She acknowledged that the Driver A role required a licence. When asked why she confined her search to outdoor positions, Ms Phelan said that the issue was whether the Complainant had the relevant qualification for roles, not whether the post was an indoor or outdoor role.  A qualification was required for the climate change officer role. There were no Driver B vacancies at that point in time.  Two posts became available. 

When asked why a precondition that the Complainant take up the traffic warden post was imposed on his return to work as a Driver B, Ms Phelan said that she understood that he had to return to work to do the training for the Driver B role. That condition was ultimately removed as part of the mediation process. She could not say if that constituted reasonable accommodation. 

9. The Relevant Law

Section 2 of the Act defines the term “Disability” includes: -

“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;

Section 16 of the Act addresses the nature and extent of employer’s obligations in certain cases as 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,

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

Section 74(2) of the Act provides:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to— (a) a complaint of discrimination made by the employee to the employer…”

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.

10. Deliberations

This complaint is the first of three complaints lodged by the Complainant to the WRC alleging a continuum of discrimination on the disability ground and victimisation. As the complaint was lodged to the WRC on 6 April 2023, the relevant period for consideration having regard to the statutory time limits under the Act is the period from 7 October 2022 to 6 April 2023.

The first matter for the Court to consider is whether the Complainant had a disability at the time material to his claim and, if so, whether the Respondent was on notice of that disability.

The Complainant submits that he suffers from a disability under the Act namely “stress, anxiety anddepression”. The Complainant gave evidence that he was prescribed medication to treat depression and anxiety since 2022.  He contends that medical evidence shows that he suffered from “work related stress, anxiety, panic attacks and depression due to stress at work”, which amounts to mental health issue or stress related disorder. He contends that it is well established that depression, depressive illness, anxiety and work-related stress all fall within the meaning of the Act.

The Respondent acknowledges that the Complainant was absent in the relevant period due to ‘work related stress’ which it contends was an illness that does not fall within the definition of ‘disability’ within the meaning of the Act. It contends that no assertion was made that the Complainant suffered from “depression” and no evidence provided to support such an assertion. The Respondent asserts that the Complainant’s absence due to ‘work related stress’ was not in itself sufficient to show that the Respondent had awareness through any medical evidence of any disability relating to his mental health.

It is not disputed that the Claimant was unfit for work for a protracted period. Both the GP medical certificate submitted by the Complainant, and the Occupational Medical Report relied upon by the Respondent, support the contention that the Complainant was unfit to attend work. 

The Complainant’s GP certified that the Complainant’s absence from 9 November 2022 was due to ‘work related stress’. While the Complainant referred the Court to a GP medical certificate dated 12 December 2024 which stated that he was treated for “work related stress, anxiety and panic attacks due to stress in work, along with depression” from November 2022 to September 2024, the Court finds that he cannot rely on medical certificates which postdates the relevant period under consideration to assert that the Respondent was on notice of a disability at that time.

The Court notes that the Occupational Medical Report is silent on the reason for the Complainant’s absence. The occupational physician stated that the Complainant was medically fit to engage with the Respondent in relation to his work concerns. The Physician recommended that the Complainant would benefit from counselling and be reviewed again in 4-6 weeks’ time.

Having regard to the medical certificates proffered, the Court finds that the Respondent was on notice that the Complainant was absent on sick leave due to work related stress during the relevant period for the complaint. The Court finds that no medical evidence was tendered to indicate that the Complainant suffered from a disability, namely depression, for the purposes of the Act during the relevant period.

The Complainant relies on correspondence submitted by his union representative on his behalf, to support his assertion that the Respondent was on notice of his stated disability. 

The Union on behalf of the Complainant requested all correspondence addressed to him be redirected to his union representative. The correspondence between the Respondent and the Complainant’s union representative during the relevant period was primarily focused on exploring possible redeployment options with a view to facilitating the Complainant’s return to work. It is clear from the correspondence that the Complainant found the situation that he found himself in to be stressful.

In email correspondence dated 8 November 2022, the Complainant’s union representative cited the Complainant’s ‘compromised mental health’ and ’fragile mental disposition’.  In email correspondence dated 9 December 2022, the union representative stated that the Complainant was ‘distressed’ and at ‘breaking point’. In email correspondence dated 15 December 2022, the Complainant’s union representative says that the Complainant is ‘mentally ill and unable to work’.

The Respondent in response referred the Complainant to their occupational health provider for assessment. The Complainant was assessed by an occupational health physician on 16 January 2023, who certified the Complainant as unfit for work and recommended a review within 6 weeks of that date. The occupational health physician did not state the medical reason for his absence from work.

In subsequent correspondence to the Respondent dated 15 March 2023, the Complainant’s union representative made reference to the Complainant’s ‘unquantifiable illness, distress, and financial hardship’. In correspondence dated 28 March 2023, the Complainant’s union representative stated that ‘Eddie is really struggling mentally’ and stated that he was ‘suffering with mental illness attributable to the treatment that KCC has subjected him to”.

On 6 April 2023, the Complainant submitted a complaint to the WRC in which he stated that he was “suffering with mental illnesses, anxiety, depression and work-related stress”.

The Complainant gave evidence of his struggles with anxiety, panic attacks and his treatment for depression. The Court found the Complainant to be an honest and credible witness. The Complainant fully accepted that his employer was not notified about his anxiety, depression and panic attacks. He also accepted that the occupational health physician did not specify that he was receiving treatment for depression. When asked how the Respondent was to know about his disability if that information was not contained in the occupational health report, the Complainant said he did not know. 

Having considered the evidence tendered, the Court finds that the Respondent was on notice that the Complainant was absent form work due to work related stress. The Respondent acted reasonable at that time by referring the Complainant for assessment with its occupational health providers.

The Court accepts the evidence of the Complainant that he suffered from depression, which is a disability for the purposes of the Act. The Respondent was not aware that the Complainant suffered from depression at the relevant time. The Court finds that the earliest date that the Respondent was on notice that the Complainant suffered from depression was after 6 April 2023 when the Complainant submitted a complaint under the Act to the WRC in which he stated: “I am suffering with mental illnesses, anxiety, depression, work related stress (sic)”.

Having regard to the evidence proffered, the Court is not satisfied that the Respondent was on notice that the Complainant suffered from a disability under the Act at the time material to his claim. Accordingly, the Court finds that there is no basis to his complaint that he was subjected to discriminatory treatment or that he was victimised by the Respondent on the disability ground.

It is for the Complainant to prove the primary facts upon which he relies in seeking to raise a presumption of discrimination.  If the Complainant fails to do so, his complaint cannot succeed.  In this case, the Court finds that the Complainant has not established sufficient facts to infer that he was discriminated against on the grounds of a disability such that the burden of proof under the Act shifts to the Respondent. 

11. Determination

For the reasons set out above, the Court determines that the Complainant was not discriminated against on the ground of disability. The Court determines that the Respondent did not fail to provide the Complainant with reasonable accommodations for his disability. Finally, the Court determines that the Respondent did not penalise the Complainant in circumstances amounting to victimisation contrary to the Act.

The complaint is not well founded.

The Complainant’s appeal fails.

The Decision of the Adjudication Officer is varied accordingly.

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

NOTE

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

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