Complainant

Respondent

Parties

Joseph  Joyce

The Commissioner of An Garda Siochana

Representatives

Emma Davey BL

Rachel Scanlon Solr.,

Tormey Solicitors. 

Dillon West BL,

Aideen O’Brien Solr.,

Chief State Solicitor's Office CSSO

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00053461-001

28/10/2022

This hearing was conducted over the course of ten days and were in person hearings in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

I informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021, and where there is potential for a serious and/or direct conflict in the evidence between the parties to a complaint, then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate and in order that matters might progress. It is noted that the giving of false statement or evidence is an offence.

Part of this case was heard by way of a hybrid hearing. To facilitate some of the witnesses their evidence was heard by way of remote attendance which is provided for pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote contact was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that neither party was prejudiced by having parts of this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

The specific details of the complaint are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 28th of October 2022. In general terms, I am therefore initially looking at issues that have arisen in the six-month period directly preceding this date. The initial cognisable period runs from the 29th of April 2022 to the 28th of October 2022.

The Complainant had full legal representation at the hearing. When it came time to hear the Complainant’s evidence, the Complainant agreed to swear an Oath to tell the truth.

The Complainant brought a number of witnesses to provide evidence in support of his case. I was provided with a comprehensive submission (together with Appendices and Authorities) on the 4th of October 2024. A second submission (a replying submission) was received on the 17th of June 2025.

The Complainant additionally relied on the submission set out in the Workplace Relations Complaint Form which read as follows:  

My employer has discriminated against me on the grounds of my medical condition.  I was not permitted to work from home, and no specific risk assessment was carried out for me at my workplace. On various dates from 19th December 2021 up to and including 9th January 2022, my employer directed me to return to the workplace in person in disregard of my medical condition. I became unwell as a result and signed off work from due to work related stress. Discrimination in respect of my medical condition is ongoing as I have not returned to the workplace.

Attached to the submissions provided, was supplemental documentary evidence in support of the Complainant’s case. Other relevant documents were handed in over the course of the hearing. No objection was raised to any of the materials relied upon by the Complainant in making his case.

The evidence adduced by the Complainant and his witnesses was challenged as appropriate by the Respondent’s Representative. The Complainant had two witnesses:

Garda McDermott Rowe

Mr. Henry Joyce

The Complainant alleges that he has been discriminated against by his Employer on the grounds of his disability.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance. The Complainant must establish facts which tend to disclose that there is a prima facie case in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had full legal representation at this hearing. The Respondent entity was represented by a number of witnesses including:

Mary Gildea (Assistant Principal Officer)

Patrick McGirl (inspector)

Brian Boland (Sargeant)

James Boyle (Superintendent)

Paul Hardy (IR Unit)

Linda O’Connor (Garda Member)

The Respondent provided me with a comprehensive written submissions dated the 17th of October 2024.

No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following either an Affirmation or an Oath. The Respondent witnesses were cross examined by the Complainant representative.

The Respondent rejects that there has been any discrimination. The Respondent has raised a number of issues concerning my jurisdiction. It was not possible to focus in on these preliminary issues without hearing all the evidence.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Summary of Evidence presented at Hearing

I have carefully considered the evidence adduced in the course of ten days of hearing.

The Complainant has been a member of an Garda Síochána since July 1999 and he transferred to Longford in 2017. By early 2020, he was working something like 50 hours per week on a six-days-on, four-days-off Rota. His base salary was €70,000.00. He is a respected frontline member of staff with 20 years’ experience.

The Complainant (who swore an Oath in preparation for giving his evidence) stated that he had a chronic respiratory disorder (asthma). In 2014 the Complainant had been out of work for three months with this condition. By 2020 the Complainant said that he was living with this condition and his respiratory problems would fluctuate. He had up to three inhaler types and would keep the condition in check using these. The Complainant had come under the care of a Consultant in Galway though had had had no particular issues with the condition since that first incident in 2014. The communication with the Consultant had lapsed. The Complainant’s brother HJ gave evidence that the Complainant had always had respiratory issues and that the Complainant was very worried when the Covid 19 virus arrived.

Covid, as we know, arrived in March of 2020. People with chronic respiratory disease were deemed to be the most at risk. The Complainant applied for Special Leave as soon possible as the Complainant had been diagnosed with chronic Asthma since 2014 aforesaid.

In the circumstances the Complainant applied for the said special leave with pay from the 1st of April 2020. In support of this application the Complainant provided a medical report from his GP which stated that the Complainant had :

A chronic respiratory condition – asthma, which requires regular of inhalers. According to clinical guidance from the HSE and the Health Protection Surveillance Centre, patients with chronic respiratory conditions such as COPDS and asthma are at a very high risk of severe illness from coronavirus (COVID -19), and I advise Joseph rigorously follow the cocooning measures described by the HSE…

The application was made to an Inspector Finn. The Respondent has given evidence that the Complainant was allowed to absent himself from the workplace following an in-house arrangement reached between himself and Superintendent James Delaney. None of the witnesses giving evidence for the Respondent were aware of the details. The Respondent has suggested that the Complainant was not, at the time, considered to be in high-risk category. This was not said to the Complainant, and he assumed he was allowed to remain at home on foot of his application for special leave. Ultimately, as noted, the Complainant went home on a full-time, full-pay basis. Assistant principal Officer Mary Gildea understood that it was Superintendent James Delaney who had made the decision to allow the Complainant stay at home. Delaney did not give evidence.

In the course of evidence, a circular dated the 7th of April 2020 was opened to me. The Circular is from the HR Department concerning sick Gardai. In particular, the Circular gives guidance to cocooning for Garda personnel. There is a requirement for an employee to cocoon if the said employee has severe respiratory conditions such as cystic fibrosis and severe asthma. However, there is a positive onus on a member of Garda staff to contact the Garda Occupational Health Service to clarify whether their specific medical condition falls into the category of being extremely medical vulnerable. Cocooning must be signed off on by the CMO. The circular goes on to state that local Management should not be accepting medical certification, it must be returned to the individual Garda who must go through the Chief Medical Officer. The Complainant says he was unaware of this directive and had not personally forwarded his medical information onto the CMO for assessment. The Complainant was not clear on whether he had had sight of this circular at this time and the Respondent suggested that he was picking and choosing which emails he claimed to have had sight of. The Complainant had to agree that pursuant to the requirements set out nobody from CMO had ever signed off on him staying at home to cocoon.

For four months the Complainant stayed at home. He gave evidence when asked about it, that he was not aware of the option of working from home – it was a new concept, he said. It was not until August of 2020 that he was contacted by Inspector Finn who seemingly suggested that the Complainant should either be working from home or make himself available to come back to the station and work in an office there which would potentially be shared with at least one other person. The Complainant opted to work from home even though this option involved him having to purchase a laptop (his old one was outdated) to allow him to access the system. When he was asked about available support to settle him into working from home, the Complainant had to agree in cross examination that Inspector Yvonne Martin (who assigned work) had repeatedly reached out to the Complainant telling him to contact her if he had any issues working from home. The Complainant agreed that there was a network there, yes – he said.

As I understand it, the Complainant was working from home by late October or early November of 2020. The Complainant was working alongside a Garda McD-R who was also working remotely for medical reasons. They were clearing the Pulse system and preparing Bail Packs. The work was being monitored by Inspector McGirl working in Longford. The Complainant said he did not consider this type of work to be particularly compatible with his frontline status, but he felt it had value. When it was said to him that the work was well within his range of abilities, he said he found the merging difficult. The Complainant seemed very caught up in the fact that he had to use his own internet, and electricity and had to supply his own laptop, though he conceded he never claimed for any expenses incurred and there is no suggestion that anyone else was given a laptop. Assistant principal Officer Mary Gildea understood that those forced to work from home were happy to use their own devices in support of the greater good. She also said that she understood that there was IT support available to anyone who needed it.

Garda McDR gave evidence of working alongside – albeit remotely – the Complainant at this time. She gave evidence that there was very little support or monitoring of the work that they were doing. They were, she said, complimented on their work by Inspector Martin at one stage. The camaraderie built up between Garda McDR and the Complainant came to an end in and around May of 2021 when Garda McDR went out on unrelated sick leave. In her evidence Garda McDR did state that she believed that this particular workplace does not seek to accommodate disabilities and she gave evidence that her belief was that the Respondent considers people with disability to be something of a burden in the workplace, somehow looking to do less than a person with no disability. The Respondent pushed back against this assertion.

The Complainant continued working from home in an uninterrupted way for a further eight months. However, in August of 2021 the Complainant started receiving what are described as Welfare Visits from more senior members of staff. The Complainant described an unexpected communication alerted him to the imminent arrival of Inspector McGirl and Sergeant Newton to his home on the 4th of August 2021. The Complainant seemed greatly put out by this invasion of his family home. The whole thing was a bit much he said in evidence. He was displeased with the short notice given and the fact that they arrived at his house in a police van where they spoke with him at his front door. I understand from the evidence that the parties had a work-related conversation. The question of how he was logging on to the system was raised. The fact that the Complainant was now double vaccinated was confirmed – which the Complainant says he felt was none of their business. The Complainant described ongoing issues of losing internet access. The details of the conversation were opened to the WRC by way of an internal email from Inspector McGirl to Superintendent James Boyle describing the welfare check and detailing the conversation. This communication is described as a welfare report. The Complainant was aware that the report was being made, though had no idea of its contents until much later and in preparation for these proceedings. In his evidence he said he found the report to be condescending.

The Respondent claims that Superintendent James Boyle had ordered this welfare check (in August 2021) as he was unhappy about the standard of work being handed in by the Complainant. I fully accept that this was not clearly made known to the Complainant at this time. An issue around a mobility device which had been supplied to the Complainant, and which had not been turned on by him was discussed. I get a sense that the Complainant spent a lot of this conversation defending himself and the work he was doing. I therefore have to wonder whether the Complainant should not have realized at this point that his Employer was not wholly satisfied with him?

It is quite clear form the tone of the said email/welfare report (subsequently passed from McGirl to Boyle) that the Complainant’s superiors were not best pleased with the Complainant and how he presented and how he was seemingly was only clocking into work at 7pm after putting a long day into working on his farm. The report noted:

He was dressed in extremely dirty clothes and had the appearance of a man who had done a hard days physical work! ..he stated he had no difficulty in working at night as he is “a bit of night owl”

The Complainant pointed out that technically he was rostered 7 to 7. It seems clear to me that, rightly or wrongly, Inspector McGirl (and others) had by August of 2021 formed the impression that the Complainant was slacking off.

The Respondent made the case that this Welfare Report was sent to Assistant Principal Officer Mary Gildea who forwarded it on to HRM Sick to determine if it would be possible to offer a safe working environment to the Complainant. Not long after this date, and unbeknownst to the Complainant, email enquiries were made (in late August 2021) by the Occupational Health Nurse of the HR sick Department concerning the Complainant’s status. From the email, it is not clear to the parties engaging in this communication whether the Complainant’s entitlement to work from home was a local arrangement or one directed by the Occupational Health Service. Questions are now being raised about the Complainant’s status, and the advice is that returning staff to the workplace must be decided on a case-by-case basis in light of the vaccination status of a returning member of staff and any other medical clinical consideration.

Assistant principal Officer Mary Gildea confirmed that she was contacted by Superintendent James Boyle on about the 6th of August 2021 seeking information on getting people working from home, and who were by now fully vaccinated, back into the workplace. It was the fact of their now being vaccinated that it was thought appropriate that they should return to the workplace. All workplace preventative safety measures were in place.

It was presumably on foot of these enquiries being made that Inspector Finn felt that it was appropriate to communicate with the Complainant for the purpose of bringing the Complainant back into the workplace. A written communication was handed to the Complainant by Inspector Finn and Sergeant Newton at his home on the 5th of November 2021. This read:

In line with Occupational Health “Return to Work” procedures, Garda Joe Joyce will now submit an up-to-date medical status report from his GP to Occupational Health Section, Garda HQ. This report will outline Garda Joyce’s current condition, recent deteriorations, hospitalizations etc and “any confounding clinical considerations that place the member in a category of high vulnerability”. The letter will also include the vaccination status of the member concerned….

…If the GP does not consider the member fit to be cleared to return to duty, the GP should outline the justification for that opinion which will be considered by the occupational Health Section.

The expectation seems to have been that if a member is to be returned to the workplace (as sanctioned by the Occupational Health), then the member will liaise with the District Management to discuss how a safe working environment might be prepared. It has been pointed out to me that this November communication does not look for anything beyond a GP report. There was no demand for a specialist report from a Respiratory Physician or a Pulmonologist at the time.

A more general circular published at this time (dated November 22nd) and addressed to all Gardai describes the Garda Siochana as an essential service with personnel attending the workplace on foot of an objective risk assessment. The Complainant could not confirm that he had seen this document. It was noted in the cross examination of the Complainant that the circular expects that all members of the Gardai are under a general direction to take personal responsibility in ensuring the safety of others and of ourselves. The extent to which the Complainant engaged with this expectation, including taking responsibility for managing his own safety requirements, and to engage proactively and constructively with the measures proposed, has been a significant and recurring issue between the parties.

The Complainant submitted a medical report from his G.P. (dated 11th of November) which said report confirms that the Complainant has a chronic respiratory condition (asthma) and advises that the Complainant continue to work from home in order to keep himself safe.

The Complainant says he submitted this report to the Chief Medical Officer. I have to acknowledge that the report is not exactly fulsome. For the record, I am noting that there is no suggestion that the G.P has personally examined the Complainant or even directly spoken with him. There is no detailed history of recent events and in fact the medical status (from the GP’s point of view) is exactly as it was in April 2020. There is no referral to a specialist, and no reference is made to vaccines administered and/or a better understanding of the virus. In short there is no confounding clinical considerations that place the member in a category of high vulnerability. The Complainant did not ask his GP to elaborate and appears to have assumed that the GP’s advice that the Complainant ought to work from home would be automatically accepted by his Employer.

I accept that the Complainant must therefore have been very surprised when he was notified by Inspector Finn in early December 2021 that he was being directed back to the workplace as of the 9th of December 2021. The information was contained in a letter which was hand delivered to the Complainant by Inspector Finn.  The Complainant says that Inspector Finn said that more is known about the virus now. The Complainant also concedes that he was told by Finn that Gardai numbers were down and that there was a manpower issue in the Longford Station. The letter further invites the Complainant to contact District Management to make any arrangements regarding the working environment. The Complainant says he was confused about how this decision had been reached as his medical report had gone to the CMO and he had no inkling that the CMO and his Longford management hierarchy had communicated.

The Complainant also felt that it was very short notice, and in any event, he already had annual leave booked. He did not mention this last fact to Inspector Finn although they did discuss the content of the letter on the Complainant’s doorstep. He was advised by Finn that the decision to return the Complainant to the workplace was made by Superintendent James Boyle.

Superintendent Boyle gave his own evidence about this time in Longford. He said there was a need for the Gardai to be on the streets. He needed to maintain law and order and keep everyone safe. He said we needed our frontline staff back on the frontline. There was a requirement for a visible presence on the streets. Shopkeepers and the business communities were requesting the presence of the force. So many staff members were out on long term sick leave with injuries and Covid etc he had to look at anyone who might be available to him.

The Complainant took his pre-booked annual leave without reference to the workplace and then applied for a few days force majeure leave which covered his absence on the 18th and 19th of December 2021. This application for Force Majeure leave was criticized by Inspector Finn who suggested that the Complainant had not gone through the proper channels. The Complainant noted in evidence that Inspector Finn seemed very angry about this issue. It was put to him in cross examination that he knew he had been directed to come back to work on the 9th of December 2021 and that he had failed to come back and had further failed to notify his superior Officers as to why he was not back.

I understand that the Complainant ought to have been rostered for Christmas day, but he did not go into the workplace on that day either. Instead, on the 24th of December 2021, the Complainant wrote to Superintendent James Boyle asserting that for his own safety he would be staying at home to work, as the Covid numbers had dramatically risen over the preceding days. This was the time of Omicron variant. It was put to the Complainant that he was, once again, simply not obeying a direction given. The Complainant justified his position in circumstances where he said he understood  that no Objective Risk Assessment (concerning himself) had been carried out between local Management and/or District Management and the Occupational Health Service (on behalf of the CMO). The Complainant also pointed out that he had seen nothing which contradicted his own GP’s advice that he needed to stay at home for his own safety. The Complainant followed this email (of the 24th of December) with a phone call placed directly with Sergeant Boland on the 25th of December. He stated his reason for his non-attendance was set out in the email. Boland outlined his recollection of that call. He says he received the communication from the Complainant on the 24th of December 2021 resisting the direction to come back to the workplace. Before he had a chance to look at the email Boland said that he had taken a courtesy call from the Complainant to confirm he would not be attending on the 25th of December. The Complainant had confirmed that he was not sick and that he was not looking for Force Majeure. The Complainant insisted that the reasons for his  non attendance could be found in the email. Boland described the Complainant as having been  vague on the phone. Sergeant Boland said he was bound to report this interaction up the line.

Sergeant Brian Boland noted that this was his first interaction with the Complainant. It had been Finn who had directed him back to the workplace on the 7th of December.

In reaction to the news that the Complainant had not presented himself back at work, Superintendent James Boyle seemingly contacted Assistant Principal Officer Mary Gildea in the Business Service Department for Longford and Roscommon seeking some sort of confirmation of the position taken by the Chief Medical Officer regarding the Complainant. Gildea’s function was to liaise with the CMO. Assistant principal Officer Mary Gildea also noted that the Complainant is a frontline member of the Gardai and as such was needed at the front line and not doing administrative work

A few days later, and outside of the Complainant’s means of knowledge, Assistant Principal Officer Mary Gildea contacted Superintendent James Boyle by email to confirm that the CMO has no documentation or clinical assessment of the Complainant which supported a working from home requirement. This must have been somewhat surprising for Superintendent Boyle given that the Complainant had been out of the workplace for one year and nine months at this stage.

Assistant Principal Officer Mary Gildea goes on to confirm that

“Risk assessments for all at risk employees have been undertaken by the organizations and safe working environments have been identified and provided. This is the case for Garda Joyce.

It is requested that Garda Joyce return to his front-line policing role unless supporting documentation can be provided from his treating specialists to the CMO and alternative advice can issue”

This communication from Assistant Principal Officer Mary Gildea was communicated to the Complainant on the 31st of December 2021 by email and accompanied by an affirmative direction that the Complainant report for duty on the 1st of January 2022 at 7am. This was followed by a phone call made by Inspector Yvonne Martin confirming the instructions.

The Complainant was very distressed at this turn of events. He was being given no opportunity to seek the medical advice of the treating specialists (referenced by Gildea) who, he had to acknowledge he had had no dealings with since as far back as 2013 or 2014. The Complainant wanted it noted by me that a specialized medical report from a treating specialist had never before been asked of him.

As he put it himself, the Complainant needed a specialist report, or to report for duty.

The Complainant telephoned Superintendent James Boyle on the evening of 31 December 2021. According to the Complainant, the conversation was brief and he was advised by Superintendent Boyle that he would not be “dealing with people.” The Complainant stated that he regarded this as sufficient assurance that he could safely return to the workplace.

Superintendent Boyle, however, categorically denied having provided any such assurance. He rejected the suggestion that he would have given a guarantee of that nature, noting that it would be unrealistic for a frontline Garda member to expect not to have any interaction with the public. While he could ensure that appropriate precautions and safeguards were in place, he could not guarantee the absence of public contact.

Superintendent Boyle did, however, assign the Complainant to foot patrol duties. There was an operational requirement for such duties at the time, and in his view, the assignment was consistent with the concerns initially raised by the Complainant. Superintendent Boyle described the patrol area as a safe beat which enabled the Complainant to carry out his duties, addressed his expressed safety concerns, and maintained a visible Garda presence within the community.

I must note that it was never satisfactorily explained why the Complainant did not obtain a consultant's or other specialist medical report in relation to his chronic condition. While I acknowledge that the Respondent, for reasons known only to itself, did not specifically request such a report, I find it surprising that the Complainant did not appreciate the limitations of the medical evidence he was relying upon. The reports provided by his GP contained little detail regarding the nature of his condition, the extent of any resulting restrictions, or the basis upon which working from home was considered necessary.

The Complainant clearly sought to secure a work-from-home arrangement. However, he produced very limited medical evidence to support that request. I draw no adverse inference regarding the Complainant's health from this fact. Rather, I consider that the absence of a specialist assessment placed the Complainant at a significant disadvantage in advancing his position. It seems to me that, at any stage during the relevant period, he could have sought a referral for a specialist assessment to provide a more comprehensive evaluation of his medical status and any workplace implications arising from it.

In my view, such evidence may have assisted considerably in clarifying the issues between the parties and may have avoided a significant amount of difficulty and distress. Given the Complainant's role as a member of An Garda Síochána, and his familiarity through court-related work with the evidential value of expert opinion, it is reasonable to conclude that he would have understood the importance and weight typically attached to specialist evidence when factual matters are in dispute.

On the 31st of December 2021 it is noted that Superintendent James Boyle also communicated with Sergeant Brian Boland as the Officer to whom the Complainant would be reporting the next day. Superintendent Boyle directed that when the Complainant came into work the next day that he should be assigned on foot patrol around the town with breaks to be taken in accordance with safe working environment advice. It is worth noting that the email includes the line:

Failure by Garda Joyce to report for duty is a disciplinary offence and should be reported to me and to my office.

Quite rightly, the Complainant representative has suggested that the general attitude towards the Complainant is encapsulated in this communication. I agree that it has the hallmark of a trap being laid. It is also worth noting that there is a suggestion in the same email exchange (between Boyle and Boland) that the Complainant has been absent without leave though this allegation was never put to the Complainant. What comes across from the tone of these emails between the Complainant’s management team is a high level of exasperation with the Complainant. I note that Boland and the Complainant did not actually know one another as Boland had arrived in Longford while the Complainant was working at home.

For the record, I am also noting that there is no suggestion contained in these communications that there was (at that stage) any formal assessment of the appropriateness or otherwise of placing the Complainant out on foot duty as against having him inside in his own personal workspace. I appreciate Superintendent James Boyle might have personally thought this was an excellent solution, but there is nothing to suggest that Super. Boyle had any knowledge or understanding of the Complainant’s condition and there is no suggestion that he consulted with anybody who might properly give advice on what is the optimum accommodation to be given. I cannot give credit for the provision of reasonable accommodation, where the person providing it has no insight into the medical condition being complained about.

When the Complainant presented for duty on the morning of the 1st of January, he was horrified to learn that he was expected to go out on foot patrol. His suggestion that Superintendent James Boyle’s categoric assurance that he would not be dealing with people was dismissed he says. The Complainant was further advised that a conference room had been set up as his bubble from which he could base himself. The Complainant was uneasy about other people using the room he had been assigned to. The Complainant felt that the use and availability of PPE was insufficient. He described empty hand sanitizer bottles, no wipes, inconsistent mask use and a general air of uncleanliness in the station. The Complainant stated that he understood at least one member of staff was self-isolating at the Station. Ultimately the Complainant says that he felt that outside in the open air would be the safest place to be. When it was said to him that Superintendent Boyle had proposed the safest possible environment (outdoors in the open air) in which to work - the Complainant countered by stating that Boyle had directed him into the busiest streets in town. He suggested that Superintendent Boyle would have known that members of the Public would approach him, thereby putting him at risk. This did in fact happen, he said in his evidence.

Assistant principal Officer Mary Gildea gave emphatic contradictory evidence when she noted that all the safety measures demanded by the Government and HSE were put in place in all the relevant buildings. There was infection control, buddy systems, lone working spaces, distancing, Perspex screens, gloves and masks. She gave evidence that each station was subject to a generic risk assessment. Each room was considered. Each vehicle was considered. Handling prisoners was assessed. All necessary safety protocols were in place. All preventative safety measures were in place. She asserted that any such risk assessment was for the benefit of all members of the Gardai, including the Complainant. She said that the Complainant was also covered by the Risk Assessment for all at risk Employees. Assistant principal Officer Mary Gildea rejected the evidence put forward by the Complainant that the Longford Station was a mess or was dangerous. She indicated that she had been on site there many times over Covid.

Echoing this sentiment, Sergeant Boland gave evidence that Longford Garda Station was fully compliant with the applicable COVID-19 measures. He stated that he himself had elderly parents whom he was not prepared to place at risk and noted that many members stationed in Longford had vulnerable family members or loved ones whose welfare they were keen to protect. In those circumstances, Sergeant Boland rejected any suggestion that a cavalier approach to COVID-19 safety was being taken within the station.

Sergeant Boland gave further evidence of his meeting with the Complainant on the 1st of January. He says they had a good meeting on the 1st of January 2022. They were new to one another, and he wanted to ensure that they got off on the right foot.

The Complainant noted that he was not supplied with a working Radio for his beat and when he raised this issue, he was told to use his own mobile. Garda McDR gave evidence that this was unacceptable and the Complainant’s brother gave evidence that he was horrified at this casual approach to his brother’s welfare. The Complainant says that at the time he was challenged by others on whether he was refusing direct instructions when he was told to go outdoors. The Complainant says he was directed to the busiest parts of the town for the day. In his evidence the Complainant says he was not best please to be sent to the busiest streets. However, he value he might add to empty streets is unknown. He says he felt unsupported by management and vulnerable to the virus. He says that Superintendent James Boyle never came to talk to him about his return to work.

Sergeant Brian Boland absolutely rejected that the Complainant was sent out without a correct radio. He acknowledged that the Complainant’s own Radio had presumably shut down as it had not been getting used in the work from home scenario. The Complainant’s Radio might have needed to be re-activated by the relevant telecoms people. In the meantime, he stated that there were plenty of pool Radios available for reserves. It would, he accepted, be highly inappropriate to prevent a member from going out without a radio. In a more stinging rebuke, he suggested that he had to be allowed to assume that a senior Garda (with twenty yeas service) knows what the best practice is.

The Complainant was challenged in cross examination on much of what he was saying. He agreed, for example, that only one member of Longford Garda staff was formally cocooning. That member had diagnosed multiple sclerosis. The Complainant was forced to concede that he was able to observe social distancing in the workplace and that there were HSE notices everywhere. He agreed that on the day of his return it was obvious that staff numbers were down 40% though he felt that was more of a Bank Holiday issue. He agreed he did not open windows as it was the middle of January. He agreed he and others were able to wear their masks inside and outside. The Complainant was asked why he couldn’t simply direct members of the public to keep their distance, even while still listening to issues being raised with him?

The Complainant returned to work on the 2nd of January and was again outdoors for most of the day. However, at one point he was in the station and felt obliged to join Garda Linda O’Connell on a summons serving mission. She would otherwise be going on her own, he said. Being in a squad car and close up to the person upon whom the Summons was to be served, made the Complainant anxious he said.

Linda O’Connell (Community policing) gave evidence that she was in the warrants and summons sections. On the 2nd of January she had two house calls to make to deliver documents or warrants and to issue a caution in one. The Complainant offered to accompany her. She says she was not looking for a second person to come along with her but accepted the offer. The Complainant wore a mask and happily came in the car with her and also into the home of one of the intended recipients. They all kept their distances as appropriate, and she noted that the Complainant was not overly nervous or uptight about the tasks to be completed

Back in the station an unmasked (per the Complainant) Sergeant Brian Boland tackled the Complainant about sick certs and Force Majeure leave. Boland was new to the Complainant. He had not worked with him before. He did put on his mask when asked to but the Complainant felt that the entire Station was tired of obeying Covid advice, and this was not a sterile environment. The Complainant felt that the promise of Superintendent James Boyle not to be dealing with people was not being kept. He told Boland that he had been given a categoric assurance from Sergeant Brian Boland that he would not be dealing with people and was meant to be conducting a non-contact role. The conversation which was had between the Complainant and Boland was tense. The Complainant gave evidence that Boland lost the head with me.

Ultimately the Complainant had a meeting with Sergeant Brian Boland and Inspector McGirl on January the 3rd 2022. It was put to the Complainant that (after making enquiries with the Super), Superintendent James Boyle denied suggesting that the Complainant would never be expected to deal with people. The Complainant was shocked at this denial. He says that he told the two Managers that he had never been given any information concerning any Risk Assessment for him. He says that the two gentlemen scoffed at him, saying he was looking to catch Covid going off in the car with O’Connell. The Complainant felt that this was throwing his good deed back in his face. It was suggested to the Complainant that moving forwards he would be working nights at the hatch. This was a quiet time of the day and therefore suitable for his needs, they said. The Complainant knew there would be lots of processing of prisoners in the nighttime shift. The Complainant alleges that Inspector McGirl suggested that the Complainant had done well getting 22 months off. The Complainant was understandably rattled by this meeting.

Sergeant Brian Boland confirmed that he and McGirl met with the Complainant on the 3rd of January 2022. The Complainant arrived late and the unit had already been paraded. Sergeant Brian Boland had been told by McGirl that the Complainant had the day before expressed dissatisfaction at having to be dealing with the public and that this was against the wishes he said of Superintendent James Boyle. Sergeant Brian Boland took the opportunity to discuss this matter with the Complainant in the presence of McGirl.

Sergeant Brian Boland explained to the Complainant that Superintendent James Boyle had himself directed the Complainant be put out on foot patrol and had never said anything about not dealing with the public. Sergeant Brian Boland said he was of the view that the Complainant was back to work in his full capacity and that there were no riders on his availability. He was back as a full frontline member. Sergeant Boland agreed that on the 3rd of January 2022 there was a conversation around moving from foot patrol to the Stationhouse. As the sergeant in charge, he wanted to use the talent in the best way.

He rejects he got annoyed with the Complainant making a house call and said he was not even aware that one had been made at the time of the 3rd of January meeting.

Sergeant Brian Boland noted that the Complainant had not provided anything that might suggest the Complainant should be working from home. He had been directed back to the workplace on the 7th of December and had introduced nothing in the intervening weeks which might have been persuasive against assuming he was in a position to resume his duties

The Complainant wrote to Sergeant Brian Boland the next day re-asserting the promise made by Superintendent Boyle that the Complainant would not be dealing with people. The Complainant also specifically asked for details of the Risk Assessment conducted into him personally and concerning his return to the workplace.

Of his own volition, the Complainant contacted the Occupational Health Nurse and from this communication it was confirmed that no risk assessment had been made concerning his needs and the overall safety of the Complainant being returned to work.

It meant Assistant Principal Officer Mary Gildea was wrong when she said that Risk assessments for all at risk employees have been undertaken by the organizations and safe working environments have been identified and provided. This is the case for Garda Joyce.

The Complainant believed he had been misled and that in their rush to get the Complainant back into the workplace, nobody had bothered to make sure that this was a safe and appropriate course of action. Thereafter the Complainant submitted a medical report declaring the Complainant to be suffering with work related stress and which excused the Complainant from work up to the 30th of January 2022.

In consequence of this development, an Occupational Health Referral form was forwarded to the local Chief Superintendent. This standard form was completed by Inspector McGirl. McGirl agreed he moved to complete this form quite quickly as he wanted to move the matter on to HR Medical. The correctness of the details filled into this form was examined closely in the course of the hearing to somehow deduce tone and attitude. So that for example, it was suggested in the filled-out form that there was a pending disciplinary matter when in fact there was no such thing. It is worth noting that the referral form was filled out and submitted in connection with the stress related absence and not the asthma issue. The Complainant was made aware that this referral was being made and was invited to submit a medical report to the Occupational Health Section (set out in letter dated the 26th of January 2022). It is worth noting that this process is described in the 26th of January letter as a “return to work” process and is similar to the “return to work” communication received by the Complainant in November of 2021. The two sperate incidents have, of course, been triggered for very different medical reasons.

The Complainant says that he was, at this time, expecting Superintendent James Boyle to contact him and to confirm that he had never intended that the Complainant, on returning to work, would have to come into direct contact with anyone, including members of the public.

Interestingly around about this time the Complainant was invited to partake in the annual Performance Accountability and Learning Framework (PALF) assessment which is an annual occurrence. The Complainant found it strange that he was being asked to do this at a time that he was out sick. He suggests this formed part of an ongoing campaign to apply pressure on him. Garda McDR confirmed that this exercise was never asked of her. Superintendent Boyle suggested that the PALF email would have gone out to all members of the Gardai. It assists with the setting of annual goals.

Ultimately the Complainant is advised that (under the in-house medical scheme) he will have an Occupational Health appointment with a Dr. Thakore which is scheduled for July of 2022 some five or six months away.

The Complainant described himself as feeling very low at this time. He felt everything was spiraling downwards. He had no motivation and was ruminating on perceived grievances. The Complainant’s brother noted a marked downturn in the Complainant’s ability to keep up with his farm and he lacked enthusiasm for even taking pride in his personal appearance. The Complainant, to his mind, was very distressed with his treatment in the workplace.

An Garda Síochána has a policy governing the management of sick leave (Directive No. 139/2010). This policy was opened to the WRC and it is noted that it expressly provides for regular contact between management and members who are absent on sick leave. As I understand it, the purpose of such contact is not to discuss personal medical matters but rather to conduct what are described as “welfare checks.” The policy indicates that the preferred method of contact is by way of a visit to the member.

Initially, these welfare visits were conducted by Inspector McGirl and Sergeant Boland. The Complainant took issue with the manner in which these visits were carried out. He felt that the attendance of two senior members in full uniform and in a marked Garda vehicle conveyed an unnecessary message to the local community. He described the visits as involving the full “bells and whistles” treatment. The Complainant’s brother gave evidence that the marked patrol car was attracting local attention and giving rise to speculation.

The Complainant accepted that on one occasion he avoided contact with the visitors and did not answer the door. On another occasion, the two officers arrived unannounced and spoke with the Complainant's son. On a further occasion, the Complainant's wife was asked to accept delivery of a letter addressed to him. The Complainant regarded these interactions as an unwarranted intrusion into his privacy and was understandably upset by them.

Assistant principal Officer Mary Gildea noted that the policy of hand delivering documents/letters is simply to ensure that the member is fully on notice of the content. The Respondent witnesses found nothing unusual in the use of a marked car.

It was also in line with this sickness absence policy that, on or about the 16th of March 2022,  Inspector Adrian Flynn had a long conversation with the Complainant around the circumstances regarding the absence due to work related stress. Inspector Adrian Flynn and the Complainantmet for about two hours in the Complainant’s home – both wearing masks. The Complainant felt that Flynn really listened to him. The meeting was to discuss the circumstances leading to the stress related leave. Flynn took notes. When asked, Flynn explained that he would be preparing a report to be sent to the Chief Medical Officer. Prior to issuing these proceedings through the WRC, the Complainant never saw this report. I also note that Dr. Thakore had also specifically requested that local management meet with the Complainant to identify appropriate measures which might be reasonably practicable to put in place to minimise the impact of work-related issues. Any report created was to be forwarded to Dr Thakore prior to the appointment with the Complainant (due on the 1st of July 2022).

Inspector Adrian Flynn went through the Complainant’s work history from the outbreak of Covid. Per the synopsis prepared by Flynn, the Complainant told him:

I wish to return to a safe working environment and this I feel was not the case on the 1st of January 2022, this is very stressful and the way it was handled was also very stressful. It is not just the virus it’s the way it was handled. I did not understand why I was being requested back to work on the 9th of December 2021 when I* had been working for the previous 20 months at home and my doctor had communicated as recently as the 12th of November 2021 to the Chief Medical Officer that I should continue to work from home for my safety

In cross examination, the Complainant stated that he was most concerned that he still had not heard anything from Superintendent James Boyle and had by now formed the view that the management structure in Longford had utterly failed him, had caused him stress and anxiety and he could see no obvious way of returning to that environment.

In early April 2022 the Complainant received a run of the mill email from a Katherine Furey (a civilian member of staff in administration) which was attached to a series of older emails going all the way back to February of 2022 and referencing a disciplinary matter, directed at the Complainant, which had been raised as far back as December of 2021. This came as a shock to the Complainant who had had no prior inkling that there was a problem with the work he had been completing from home over the previous 20 months. He said that nobody had ever suggested such a thing to him, though I have noted that the much earlier welfare check conducted on the 4th of August 2021 was to my mind noteworthy as it seemed that performance related matters were being obliquely raised with the Complainant.

However, I do certainly accept that it was far from ideal that the Complainant would get notified about a proposed disciplinary issue (albeit that he was mistakenly notified) while out on work related stress. The Complainant stated that it felt like management were trying to push him over the edge. I absolutely accept that the burden of living with the spectre of a performance related disciplinary proceedings was onerous. It hung over the Complainant for another year before being abandoned without comment. It was only in 2023 that Pat Hardy (the Complainant’s IR representative) confirmed that there was no outstanding Disciplinary issue being pursued against the Complainant.

Inspector McGirl gave some clarification to this issue. The Complainant when working from home had been reporting to McGirl on the fairly basic tasks he was performing from home. McGirl identified that the Complainant had not been updating Pulse in the correct way. He got confirmation of this through the ICT Service desk. It was an issue of performance. The 227 incidents were subsequently sorted out without reference to the Complainant

The Complainant does not completely accept the seemingly accidental nature of this information being made known to him.

Also, around this time (April 5th, 2022) the Complainant was handed a letter by Inspector McGirl in the course of one of the welfare visits. The letter informed the Complainant that he was being put on half his normal rate of pay in circumstances where he had now been fully paid sick leave for three months (92 days). This was subject to the presentation of ongoing medical certificates. The Complainant noted that the drop in income was very hard for both himself and his wife. The Complainant further noted that the reduced pay had a knock-on effect on his mental health.

Around this time the Complainant was also informed by Administrator Kathleen Furey that there was some confusion around his back catalogue of medical certificates. Seemingly the Complainant had sent all of his certificates to the HR Medical department who in turn should have forwarded them back to the local branch in Longford. They were nowhere to be found, adding another issue for the Complainant to deal with, again causing him to wonder if this was all just coincidence.

As time moved on, the Complainant became more and more convinced that he was being targeted, and he felt that it was now impossible for him to return to Longford and he started exploring the possibility of looking for a transfer to another Station. Initially he raised the issue with the Welfare Officer Marian Brennan to whom he had been directed by Dr. Thakore and others.

The Complainant was reviewed by Dr. Thakore - a Specialist in Occupational Medicine - on the 1st of July 2022. The Complainant found him to be very nice. Dr Thakore recommended counselling and indicated that he would be liaising with the Complainant’s Management. The Doctor confirmed that the Complainant was medically unfit to regularly attend work and directed that the Complainant should be reviewed in four months on the 7th of November 2022. Unbeknownst to the Complainant, his management team was advised to meet with the Complainant to discuss the referral to the CMO and be advised of the need to provide relevant medical certificates.

It has been pointed out by the Respondent that there is nothing in this medical report provided by Dr. Thakore that speaks to a reasonable accommodation needing to be put in place.  At this point in time, the Complainant is categorically diagnosed as unfit to attend the workplace. This diagnosis was unchallenged in any way by the Employer who, I must assume, accepts that the Complainant is now absent from the workplace by reason of an illness which might also correctly be described as a disability for the purpose of the Employment Equality Acts.

On or about the 26th of July 2026, the Complainant is contacted by a Sergeant McGauran from Longford who signals that Superintendent James Boyle wants to meet with the Complainant. The Complainant refuses this proposal (by email dated the 27th of July) stating:

I am in a very very poor state of health and is there any other way that this could be done as I do not know how this face-to-face meeting with the super would affect me.

This, to my mind is a curious reaction given that the Complainant’s evidence had consistently been that he was at all times waiting for Superintendent James Boyle to contact him. The Complainant gave evidence that his faith in Boyle was declining by the day. The Complainant (who was by now out on stress related sick leave for seven months) also suggests that he would rather all communication be through post from this point forward. He disliked the requirement that certain documents were directed to be hand delivered, though he understood that he was not singled out for this, as this was standard Garda practise.

The Complainant was also seen by another Specialist Consultant on the 31st of August 2022. A report on foot of that meeting was made available to the Garda Occupational Health Service on the 9th of September 2022 and the content of same has now been opened to me. At that time the said Consultant very much wanted to keep the Complainant under review and indicated he was not fit for work. I am satisfied that the assessment did not necessarily include an assessment of the Complainant’s respiratory issues and in fact, to this date, the acuteness of the said respiratory condition has never addressed or tested.

The Complainant indicated in his evidence that he had availed of six or seven sessions of counselling as provided for under the Garda scheme. He had found that to be useful. Thereafter he went to counselling privately. The Complainant gave quite a lot of evidence concerning his health and his frame of mind at this time. Clearly, I can only consider this evidence in the context of the Employment Equality Acts.

Around this time, the Complainant's entitlement to benefits under the Respondent's sick leave scheme came to an end, having reached the maximum period of 183 days' non-effectiveness for duty. He thereafter became eligible for consideration under the Temporary Rehabilitation Remuneration Scheme. As I understand it, eligibility for that scheme is contingent upon there being a realistic prospect of the member returning to duty within a reasonable timeframe. In the absence of such a prospect, alternative processes, including Permanent Health Retirement or Early Retirement, may be considered.

The Complainant was therefore on notice that he would be required to demonstrate a reasonable probability of returning to work. This expectation was to be reflected in the medical certification submitted in support of his continued absence. The Complainant described having to guide his GP as to the wording required in order to satisfy the relevant criteria. He accepted, however, that these requirements formed part of the Living with Sickness policy and applied generally to all members of An Garda Síochána.

The Complainant gave evidence that the process of being paid whilst out on sick leave was not seamless and that there was a huge amount of ongoing and frustratingly slow communication between him and Kathleen Furey and the Sick pay section based in Navan for the whole of the time that he was out on sick leave. At one stage in and around August of 2022, he had to get into a wrangle concerning an overpayment, which he accepted had been made. At another time, lost forms threatened to result in the complete loss of pay. Sometime later in January of 2023, which was after the WRC complaint form herein had issued, the Complainant was informed that he was ineligible for the classification of being injured on duty instead being classified as being absent through ordinary illness. The former classification allows for ongoing pension contributions which are not available under the latter classification. An appeal on this decision was subsequently rendered ineligible. The Complainant disagreed with this assessment. He believed he sustained a psychiatric injury in the course of his employment by reason of the action and/or inaction of the management team.

The Complainant also gave evidence that in August of 2022, and despite the fact that the Complainant was clearly out on sick related leave, he was contacted in connection with work to be completed before an upcoming Court date. The Complainant refused to co-operate and found the whole episode to be demeaning in the sense of the Employer’s attitude being he could do a bit of work there. The Complainant suggested that he had never seen anyone out on sick leave being called upon in such a way, though the Respondent refuted this. In fact, Garda McDR confirmed that she had given evidence at two Circuit Court hearings even after she had been out on sick leave.

The Complainant issued his workplace relations complaint form on the 28th of October 2022. As previously noted, the Complainant’s case at this point time was:

My employer has discriminated against me on the grounds of my medical condition.  I was not permitted to work from home and no specific risk assessment was carried out for me at my workplace. On various dates from 19th December 2021 up to and including 9th January 2022, my employer directed me to return to the workplace in person in disregard my medical condition. I became unwell as a result and signed off work from due to work related stress. Discrimination in respect of my medical condition is ongoing as I have not returned to the workplace.

The Complainant also issued a comprehensive formal complaint of Bullying against five members of his management team, and this was sent to the Bullying and Harassment Section of an Garda Siochana. It is worth noting that the Complainant had, by now, retained the services of a Solicitor. The narrative was set out by the Complainant, for the purpose of this Bullying and Harassment complaint, ran to about forty pages. The Complainant was subsequently advised on the 24th of November that the issues raised would more appropriately be brought under the Grievance procedure available to the Complainant. The complaints which had been raised by the Complainant, it was felt (by HR), were based on work related procedures and how matters were dealt with regarding the Complainant’s return to working outside the home in the course of the Covid pandemic. As the Complainant was by now consulting with a Solicitor, I am satisfied that if his legal advice was different, then the matter could have been pursued under the Bullying and Harassment policy. I am aware that the Complainant was also, at this time, being represented by a representative of the Garda Representative Association - Dara Gilmore GRA.

The Complainant was also now working with Industrial Relations Representative Paul Hardy. Mr. Hardy came into the Complainant’s sphere in the Spring of 2023. Initially he was dealing with the Bullying and Harassment complaint which (as noted) had seemingly not reached the applicable criteria, and the Complainant was invited to use the in-house Grievance process.

In a separate, though not unconnected, series of communications, the Complainant was advised that his application for a transfer was being looked at. The Complainant was told that if the Chief Medical Officer certified him as fit to return to work, then there was a full transfer available for him to go to Claremorris. As the Complainant’s next medical appointment was due in February of 2023, there was an expectation that the Complainant would return to work in Claremorris in due course.

On the 1st of June 2023 a Dr Muhammad attached to the Occupational Health Service supported (from a medical perspective) the suggestion that the Complainant be considered for a transfer to another location. This was the first time that the issue of a transfer is mentioned in the context of medical suitability.

However, unfortunately things did not pan out as hoped. It does the Respondent no credit that instead of proceeding with this course of action (perhaps on a without prejudice basis) the Respondent opted to delay matters by reason of the existence of this outstanding WRC claim and another cause of action referred to the Court. To my mind, it was inappropriate for the Respondent to knit any ongoing claim under the Employment Equality Acts into a final and favourable outcome for the Complainant as far as his returning to work was concerned. As I understand it the decision was made by Chief Superintendent Ray McMahon.

The Complainant’s evidence is that he was told any transfer would only be on a temporary basis unless he dropped claims before the WRC and the High Court. The temporary status of any move was a sticking point for the Complainant, though he was he says by now desperate to get back to work. The Complainant was reluctant to take up a temporary position in another station and still thereafter risk being returned to Longford.The Complainant was also wary of being asked to give up his claims on the off chance that a proposed transfer to another Station might work out for him. By now, of course, Covid (and any associated respiratory difficulty) was in the rearview mirror. The Complainant knew that if he returned to work as a frontline member of staff he should expect to stay there.

Paul Hardy agreed that in a proposed mediated settlement put together by him he had included the withdrawing of certain legal claims already instigated. He was never forcing the Complainant’s hand on that issue, he said. They were engaging in a mediation process. Mr Hardy rejected the idea that a process willingly entered into was victimisation.

I accept that there was a joint effort to find a compromise and the Complainant met with Assistant Principal Officer Mary Gildea on two separate occasions on the 27th of October 2023 and the 11th of November 22023 to whom he had said that Longford was now a toxic environment for me. Assistant principal Officer Mary Gildea noted that the returning of the Complainant to a transfer post was an accommodation. Chief Superintendent Ray McMahon eventually agreed to return the Complainant to duty.

The Respondent has (with some reluctance) suggested to the WRC that the defining feature of this case has been Complainant’s own paranoia and over sensitivity. The Complainant has described a sense of having a target on his back and being plottedagainst. I accept that this ongoing sense of being targeted has tracked through the medical reports I have seen.

The Complainant returned to work on the 17th of November 2023 albeit in a temporary position and located at Claremorris Garda Station.

Legal Position

Concerning the Six-month period.

Section 77(5)(a) of the 1998 Act provides that claims for redress in respect of discrimination or victimisation must be made within six months of the date of their occurrence:

“(5) (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.”

Section 77(6A)(a)(i) of the 1998 Act provides as follows:

“(6A) For the purposes of this section—

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period”.

It is well established law that in order for acts or omissions outside the six month time-limit to be considered, there must have been actual acts of discrimination within the limitation period (County Cork VEC  -v-  Hurley EDA 1124)

The complaint form herein issued on the 28th of October 2022 which means I must be directed to one or more acts of discrimination in the six-month period between the 29th of April 2022 and the 28th of October 2022 before I can look at other acts of discrimination which may have occurred at an earlier date or even after the 28th of October.

The Complainant gave comprehensive evidence about his interaction with the workplace from well before the 29th of April 2022 and also provided significant detail of his relationship with the Employer after the complaint form issues on the 28th of October 2022. The Complainant representative has argued that I must see all events as being part of an ongoing continuum, meaning the evidence looked at in the whole speaks to a continuous sequence. A pattern of behaviour so to speak.

For the initial six-month period that I am looking at, the Complainant was out on stress related sick leave and was submitting medical reports and getting medical advice that described no clear pathway back into the workplace. It is not immediately apparent what discussions there were around the disability related accommodations that might be needed to safely return the Complainant to the workplace at this time.  The Complainant was not in a great place at this time and in fact, the Complainant has directed me to a December 2023 medical Report of Dr. EC wherein it is stated that the period from March to December of 2022 were the most difficult time for the Complainant. This medical evidence was brought to my attention for the purpose of trying to help get the Complainant over the issue of “reasonable cause”.

Section 77(5)(b) of the 1998 Act provides that the six-month time-limit may be extended to 12 months where “reasonable cause” is established in respect of an Applicant’s delay: 

“(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.”

The well-established test for granting an extension of time for reasonable cause was set out by the Labour Court in:

 Cementation Skanska (formerly Kvaerner Cementation) v Carroll (DWT0338)  

 “It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

On balance and having considered all the evidence, I am finding that the Complainant had an ongoing disability which was certainly brought to the attention of his Employer in and around the month of April of 2020. This was, per the advice of his GP A chronic respiratory condition – asthma. Without any real scrutiny of the Complainant’s condition, the Complainant was allowed to stay at home for his own safety. Sometime later, the Complainant commenced working from home so that that his experience and ability might be utilised for the benefit of his Employer. This was an appropriate accommodation given to an individual with the disability at issue.

I cannot find that the Complainant was discriminated against during this time because he was obliged to purchase a new laptop or was subjected to welfare visits. These were normal workplace demands made of everybody in a similar position. The only unusual feature was the workplace was operating against the backdrop of a pandemic.

After some more time passes, it is clear to me that back in Longford Garda Station, questions are being raised as to the viability of having an experienced front-line member of staff being at home as against his being in a front facing role in line with his job description. There is quite clearly a tone of scepticism in the communications around the Complainant’s fitness to attend the workplace and his ongoing vulnerable status. Whether this scepticism is borne out of resentment, or exhaustion or a failure to empathise, I cannot decide. What is clear to me is that the process for having the Complainant return to the workplace over the Christmas and the New Year period of 2021 and 2022 was very badly organised.

For starters, it was never going to be acceptable that the Employer was overriding the GP medical report submitted by the Complainant on the 11th of November 2021. This report categorically confirmed that the Complainant had a chronic respiratory condition (asthma) and this report further advised that the Complainant should continue to work from home in order to keep himself safe.

Once the Employer was on notice of this medical opinion, they were stuck with it. To my mind, the Employer would be stuck with it until such time as they had a further medical report grounded in a physical medical examination (preferably by a more senior practitioner such as a Consultant) and which contradicted the finding of the Complainant’s own G.P. or at least provided positive advice on how they Complainant might safely be returned to the workplace. That is to make the reasonable accommodation in line with advice given.

Instead of taking this obvious course of action, the Employer - primarily at the instigation of Superintendent Boyle and on the advice of Ms. Gildea - decided that it knew better. The Employer decided that the Complainant could be safely returned to the workplace subject to a set of accommodations and safety measures to be seemingly made up on the fly. This was an extraordinary scenario. In more normal times, I would be more critical. But, of course, it is incumbent on me to remember that these were extraordinary times and that there was a real and ongoing need to make up deleted numbers of personnel and to bring fresh energy to the (by now) twenty months of Garda leadership response to the Covid pandemic.

I accept that nobody was asking the Complainant to be a hero or to expose himself to unlimited personal risk. However, there was an expectation that he would demonstrate the high standards of professionalism and commitment to public service associated with membership of An Garda Síochána. That expectation arises from the office held by Garda members, the powers entrusted to them, their training, their ethical obligations, and the solemn declaration made upon appointment.

I accept that members of senior management were genuinely frustrated by what they perceived to be the Complainant's reluctance to play his part during an exceptionally challenging period. However, the Complainant was also entitled to be treated with dignity and respect. In my view, that entitlement, particularly in circumstances where he had an established medical condition and had received medical advice recommending that he remain at home, could not properly be displaced by managerial frustration or resentment. Management remained obliged to engage with the Complainant in a fair, measured, and professional manner notwithstanding any disagreement regarding his position. There was certainly no entitlement to return the Complainant to the workplace (under the threat of Disciplinary action) where no proper Risk Assessment had been conducted.

I seems to me, as a matter of fact, that the Respondent discriminated against the Complainant when it brought the Complainant into the workplace without performing a bespoke risk assessment and without having a medical practitioner assess the Complainant for the purpose of a safe return to work and to somehow nullify the very clear medical assessment provided by the Complainant’s own GP. In short, the Complainant was returned to the workplace in the absence of having reasonable accommodations put in place.

Therefore at the start of 2022 it seems to me that the Complainant had been subjected to acts of discrimination concerning a failure to provide reasonable accommodation for his disability which might have been found to have contravened the Employment Equality Acts. It also seems clear to me that the timeframe for bringing an Equality complaint before the WRC was triggered in early 2022 and expired in and around mid-July 2022. I hold the view that the in-built legislative requirement limiting the time frame within which a complaint can be made serves several important legal purposes. These include the need to provide legal certainty, encouraging timely resolution, preventing the bringing of stale claims and generally encouraging efficiencies in the dispute resolution process. There is a requirement that Complainants come forward quickly, while memories are fresh and to avoid uncertainty. This is particularly true when claiming Statutory relief.

The Complainant did not come forward in a timely manner. In fact, the Complainant did not issue a workplace relations complaint form until the 28th of October 2022. This was some ten months after the forcible return of the Complainant to the workplace in contravention of the protections afforded him under the Employment Equality Acts. The Complainant needs therefore to demonstrate that there are reasons but for which the case would have been referred on time(HSE -v- Abdul Rauf FTD0817)

The onus is on the Complainant to demonstrate that something or some set of circumstances somehow prevented him from bringing this claim between January 2022 and July 2022. The Complainant’s representative has asked that I consider the issue of the Complainant’s mental health at this time and his seeming state of paralysis – unable to move forwards or backwards. I have had sight of medical report which suggests this was most acute in the early months of 2022.

I find, however, that the facts as presented in the evidence do not necessarily support this proposition. The Complainant gave detailed evidence regarding his interactions with various aspects of his employment during the first half of 2022 notwithstanding that he was absent from work on stress-related leave. For example, he had no difficulty meeting with Inspector F in March 2022 and setting out his grievances. The Complainant also continued to engage in other employment-related matters, most notably through extensive communications concerning his ongoing remuneration and entitlements.

In making this observation, I do not seek in any way to diminish the strain or distress being experienced by the Complainant. However, this must be balanced against the evidence that he remained at home with his family for this period and he continued to work on the family farm, albeit with the assistance of his brother. In addition, as a member of An Garda Síochána, the Complainant would have had a clear appreciation of the importance of procedural requirements and compliance with time limits.

Having considered all of the evidence before me, I am unable to identify any basis upon which I could conclude that the failure to submit the complaint form within the prescribed timeframe arose from reasonable cause. I am not prepared to extend the period of time in which the preliminary complaint should have been brought.

It is still, of course, open to the Complainant to establish that a cause of action (or act of discrimination in these proceedings) was triggered in the relevant six-month period which would allow me to look beyond that six-month period. The continuum argument put forward by the Complainant’s representative. However, on any consideration of the evidence presented regarding that period of time I cannot find that there is an act of discrimination arising out of the Complainant’s disability. For the entirety of the relevant six-month period the Complainant was out on stress related sick leave and was being treated in the same way as any other one of his colleagues who might be out on sick leave. The Complainant was systematically forced by Counsel for the Respondent to accept that any one of the perceived harassments/victimisations in this period of time was in line with Employer expectations and nothing to do with his absence through work related stress. Being asked to attend Court was normal, being presented with the PALF form was normal, having his rate of pay reduced was in line with the policy, having to put up with welfare visits was in line with how the Gardai operate.

Whilst I accept that the Complainant may have felt aggrieved by what he perceived to be pressure from his Employer, and I acknowledge the cumulative impact of those interactions, I am not satisfied that the treatment complained of amounted to discrimination on the ground of disability. Furthermore, it is important to note that, throughout this six-month period, there was no indication that the Complainant was fit to return to work. In those circumstances, the issue of reasonable accommodation does not arise and is not relevant to my consideration of this period.

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

CA-00053461-001  - The complaint herein fails in circumstances where the Complainant has not made the case that- within the cognizable period - he was treated less favourably than another person had been on the ground of his having a disability.