Complainant

Respondent

Parties

Tony  Fitzpatrick

Depuy Synthes (Johnson & Johnson)

Representatives

Cillian Mc Govern BL instructed by  Crushell & Co

Denis Collins BL instructed by Ronan Daly Jermyn LLP (RDJ)

Act

Complaint Reference No.

Date of Receipt

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

CA-00058083-002

13/08/2023

Over the course of June, July and August 2023, the Complainant submitted a large dossier which incorporated complaints in formation under the Employment Equality Act, 1998.

He presented these formations as a Lay Litigant.

I wish to make a formal complaint concerning the administration of the Annual Review Process, the administration of the Review Appeal Process, the administration of the Dignity at Work Process and Harassment in the Workplace due to Age and Medical Disability at DePuy Synthesis.

I found it difficult to capture the exact moment where the complaint and dispute were viewed as formed or synapsed by the WRC as there were many piecemeal pieces of correspondence sent separately in advance.

I would have preferred it if the Complainant sent in one unitary document introducing his case to the WRC.

At first glance, the complaint and dispute looked as if they were stamped received on 2 August 2023.

However, further rectification of the complainants’ submissions followed.

 I must conclude that the complaint and dispute which originated in ADJ 47240 were received by the WRC on 13 August 2023.

That was the date anchored  in the invitation to object to an investigation under the Industrial Relations Act 1969.

This is our starting position.

On August 13, 2023, the WRC sought further completion of this complaint form.

On 18 August 2023, the Respondent was placed on notice of the complaint and dispute.

On that date, both parties were also informed that it appeared that the complaint CA-00058083-002, the instant complaint, may have been submitted outside the statutory time limit permitted.

On August 30, 2023, the Respondent objected to the Dispute under the Industrial Relations Act, which the complainant subsequently confirmed was referred to the Labour Court, but later withdrawn.

On August 25,2025, the complainant responded seeking an extension of time for the complaints under the Employment Equality Act.

Johnson & Johnson had many opportunities during the informal and formal process to resolve the issues presented but failed to address any of my concerns relating to unfair treatment due to my age and disability.

 I do not believe that either of the complaint processes were professionally carried out in accordance with my statutory rights and as per J&J Dignity at Work Policy.

I was not given an opportunity in either process to examine the evidence and respond to inaccuracies.

 Neither final response afforded me the opportunity to appeal the outcome.

 Regards, Tony Fitzpatrick.

On August 6, 2024, Crushells Solicitors came on record for the complainant, joining RDJ for the Respondent.

The Complainant resigned his employment on January 1, 2024, following a period of extended sick leave. Medical Certs exhibited covered the calendar year 2023, bar two weeks in March.

A hearing scheduled for February 2024 was adjourned on application of the Complainant.

On 21 May 2025, the Respondent filed a written submission, without sight of the complainant submission.

This case was first scheduled with the conjoined case, claim for Constructive Dismissal, ADJ 50313 for 26 May 2025.

 On that day, the parties recorded that both matters were compromised and would be withdrawn if not countermanded on or before 11 July 2025.

The Complainant changed his mind and sought to hear Adjudication.

  This case was returned for a conjoined hearing with ADJ 50313 on 12 December 2025, in Cork.

Both Parties filed helpful written submissions.

 I wish to acknowledge the professionalism of each party at hearing.

 Everybody respected that the topic was sensitive and behaved respectfully.

On that day, the second conjoined case ADJ 50313, was withdrawn. The Complainant also withdrew his complaint of Discrimination on age grounds.

This case proceeded to address the Employment Equality complaints on disability and reasonable accommodation alone.

Ronan Daly Jermyn for the Respondent instructed Mr. Denis Collins BL.

Mr. Cillian Mc Govern was instructed by Crush Ells Solicitors for the Complainant.

I apologise for my delay in completing this decision.

At the conclusion of the hearing, I sought a photograph of the office space both parties had referred to in evidence. The photograph received from the respondent corresponded to the oral evidence in terms of placing the complainant at a window seat workstation in Building 2.

I did not receive any additional comment from the Complainant side.

Mr. Fitzpatrick took the oath to accompany his evidence.

Mr. Mc Carthy and Ms. Hallisey are availed of the affirmation.

The Complainant took an unusual step of sending copious documents, emails and reports appended to his foundation complaint before the WRC.  I have addressed the difficulty this created later in my findings.

The Complainant worked as a facilities Manager from 6 May 2014 to his resignation on January 1, 2024.

He came to this case as a veteran of the Pharma and Medical devices industry with an earlier successful career in the Defence forces.

The Complainant submitted that he was Discriminated against on grounds of disability and denied Reasonable Accommodation in response to his long-standing ocular disability.

He contended that any other colleague without a visual impairment constituted a comparator.

 (Hypothetical Comparator)

I appreciate that at his point of entry to WRC, the complainant was a lay litigant and unfamiliar with prerequisite documentation to prompt a hearing   at WRC. From my point of view, it would have been sufficient to just have the written complaint.

 I appreciate that the complainant is not bound to complete a statutory complaint form, but his introduction of his case was interrupted by a blue ink bi lateral analysis which was difficult for me to follow. This came into sharp focus as I sought to check the statutory time limits permitted in this case.

The matter became very complicated when additional claims were made by the complainant at various intervals up to and including April 2025.

 I would have valued a more streamlined and particularised   claim process.

In his preface to the material residual complaint, CA-00058083-002, the Complainant outlined that he had concluded a successful career in the Defence forces prior to joining the Pharma Industry in 2001.

He has worked across a number of Pharma sites prior to his work on the respondent site.

In February 2010, he developed a Melanoma Cancer in his right eye, which necessitated its removal. He has described that he has lived with monocular vision since that time and this constitutes a disability as provided for in Section 6(2) (g) of the Act. He sought the protection of the Employment Equality Act, Section 6, 8 and 16(3).

 He has also submitted that he was denied reasonable accommodation in the course of his work with the respondent.

The Respondent has accepted that the complainant lived with this disability.

The Complainant detailed that he had embraced a supportive ongoing post-operative assessment process, which incorporated annual check-ups and diagnostics.

On 6 May 2014, he joined the Respondent as a Facilities Maintenance Planner on a full-time basis and received €5,552.00 in monthly pay.

During 2020, he developed a corneal ulcer which placed him at further risk of visual impairment. He believed this may have been triggered by reduced light aspect at work.

The Complainant gave a written account of his high level of achievement and success at the business, where he consistently achieved high -performance ratings, high level bonus and high levels of respect and sense of belonging.

This changed following the appointment of Mr A, as his line manager in 2021 and the unexpected and unwelcome issuing of   Moderate / Strong performance rating on 8 February 2022. This pertained to calendar year 2021.

He was floored by this pronouncement and struggled to secure a cogent rationale for this seismic and unexpected outcome. He simply did not agree with the findings and refused to sign.

He noted a 3% decrease in annual bonus and believed he had been mis led in his opportunity to review this finding.

By June 2022, the Plant became prescriptive in expecting him to work across two buildings.

building 1 had sub optimal access to light. building 2 met his requirements for access to light.

20 June 2022, email x2 were exhibited which flagged:

   New seating arrangements, please move as detailed. Nobody owns a desk

from Mr Mc Carthy

This projected the complainant into a back wall seat opposite Mr A, his line manager in building 1 and by the window in building 2.

The Complainant denied that he had been relieved from having to base himself in building 1   and argued that he was unfairly placed there. The Complainant had sought to have his work area risk assessed by the respondent in June 2022 but was ignored.

I sought to assemble a strict chronology in the evolution of events in this case

I was provided with Mr As rebuttal to Mr Fitzpatricks formal complaint dated 22 May 2023 which covered the June 2022 time frame.

Mr A was not present at hearing and I can accept that this is of limited probative value outside of capturing a dateline .

“   Tony let me know about the requirement for natural light so  he could not sit in the seat assigned to him in B1 .I told him that I wasn’t aware of this requirement and we had a short discussion in which I offered a seat closer to the window but not beside the window as we didn’t have one in that area . Tony told me that it wasn’t suitable, and I told him not to worry about it.

I never again asked Tony to sit in that seat, and he never did sit in that seat “

He added that the complainant had been removed from the seating plan in B1.

The Complainant had endeavoured to challenge his unacceptable performance review but was wrongly informed he had missed the deadline.

The Complainant outlined a series of conflicts with his line manager during June, July and September er 2022 where he experienced unjust criticism, being shouted at and humiliated in front of his colleagues, many of whom he had worked with for years. Efforts by him to reverse this failed.

The 2022 Performance review was further disappointing and erroneous and completely distorted his contribution to the business. There was no reasonable basis for this negative review, marked moderate, strong.

   The Complainant was unable to  return to work, through illness from January 2023 to his resignation 12 months later. By then Mr A had left the business but the complainant was deeply affected by his ratings which he believed remained unfair and unjustified.

He could not achieve a revision of either rating and contended that he was misrepresented and damaged at the business.

The Complainant submitted a formal complaint on 10 October 2022. The complainant was not permitted a mechanism to correct the performance review.

The Complainant submitted a grievance on 30 March 2023  

The Complainant submitted a formal complaint under Dignity at Work Policy on 4 May 2023

The Complainant focussed the core of his complaints to the WRC as:

1 The respondent had failed to address his requests for a proper and complete visual impairment workplace assessment   which amounted to Discriminatory treatment.

2 He was denied reasonable accommodation contrary to the Supreme Court definition of “appropriate measures “in accordance with Section 16 of the Act.

3 He was targeted by unfair and unjustified performance ratings due to his disability.

4 He had received undue criticism and harassment from Mr A, which he had tried but had been unable to reverse.      

Complainant response to   Preliminary Argument on Time Limits

Counsel for the Complainant, Mr Mc Govern submitted that the circumstances of the case placed it in the realm of Louth VEC as a continuum of Discrimination and this not defeated by the respondent argument on statutory limitation.

He outlined that the complainant lived with a visual impairment, where his proximity to natural light was essential.

Mr Fitzpatrick, the complainant had consulted with the Occupational Health Nurse who directed him to his Team Lead to request a “workspace assessment “which was not done.

It was open to the Team Lead, Mr A to consult with Occupational Health Department, seek a risk assessment or take any supportive action. These actions were not pursued.

The Complainant was frustrated in seeking to navigate the internal disputes resolution framework prior to referring his claims to the WRC. This process was unfairly elongated and delayed which was the cause of the complainant’s delay.

Mr Mc Govern submitted that the complainant should be heard on the substantive case.

Evidence of the Complainant under oath:

The Complainant outlined that he believed that he had been discriminated against and denied reasonable accommodation when he was denied a workplace assessment recommended by an Occupational health nurse.

He described that he was subject to biannual medical reviews in Dublin. Here he had been advised to maximise his proximity to natural light during his Screen work.

“I wanted to make sure the area was up to date and that nothing more can be done “

During May 2022 a site wide viability assessment was underway.

Mr A, his Team lead gave the complainant instructions to step away from his job to focus on this Audit as Mr Mc Carthy had prioritised the audit, when he called for

“a full focus on the Audit “.

On 22 June 2022, he attended the Occupational Health Nurse seeking a workplace assessment. She told him to approach his team lead to seek a workplace assessment in Buildings one and two.

During July 2022, Mr A returned from leave and chastised the complainant for incomplete work. The Complainant was very upset and explained that he had been available to the business in building 2.

On the following day, he requested that Mr A counter his accusations, but he refused. Mr A shouted at him and the complainant felt deflated.

On 19 June 2022, he imparted his medical advice on his needing proximity to natural light and breaks as gleaned at the medical reviews.

He had not received adequate support from management. Everything was an uphill struggle.

During cross examination, the complainant told Mr Collins that his surgeon had made the recommendations on natural light in May 2022.

When asked about whether the buildings met the recommendations, he answered that “building 1 was the problem “Rotational between both buildings had commenced in June 2022.  He recalled that the last time he used building 1 base was for 1- or 2-weeks during January 2023.

The Complainant could not recall having a conversation with Mr A and Mr Mc Carthy on his work pattern and access to light outside of a mention of fluorescent tubes. He said “there was no conversation “or any discussion on leaving him in building 2.

The Complainant contended that his dignity had been affronted on 2 May 2023 in his dealings with Ms Hallissey. He had been unable to secure notes.

He had sought an extension of time for his complaint at the WRC as he wanted “to sort it out “

In response to clarifications, the complainant accepted that categorisation of the wording of performance management had changed to a five-part matrix from 2 August 2021.

He had not advanced an action on defamation and had withdrawn his complaint on bullying and harassment before the Labour Court.

He had not sought out the Health and Safety Representative and had not provided specific medical documentation   to the hearing. Mr A had left in 2023.

When asked what would solve this case? the complainant answered that “I just want to sort anything “

He had been trying to solve things since 2021/2022.

Mr Fitzpatrick was unable to provide me with a reason which caused his delay before the WRC.

He confirmed that he worked from home without specific recommendations as his work seat at home was right next to the window. Double Fluorescent lighting was installed in 2020 there.

 Mr Mc Govern sought a ruling of Discrimination on grounds of disability as a continuum. The Complainant had been denied reasonable accommodation within that continuum.

The Respondent operates a Medical Devices business (prosthetic knee and hip devices) in Ireland with 2200 employees.

The Respondent has contested the claims for Discrimination on grounds of disability.

It was common case that the complainant commenced work on 6 May 2014 as a Facilities Planner and concluded by resignation on the employment was supported by robust policies and procedures.

The Respondent acknowledged that the Complainant lived with a visual impairment.

(monocular vision post removal of eye due to cancer)

The employment progressed without incident until the complainant was provided with the outcome of his annual performance appraisal for 2021 in February 2022

Mr A. Team Leader, not present at hearing and Mr Adrian Mc Carthy, Site Facilities lead and present at hearing, conducted this appraisal and imparted “Moderate/ Strong “as their findings on a revised descriptor of ratings.

This prompted a negative reaction from the complainant who confirmed that he had always received “fully meets “rating.

While offered an appeal, the complainant delayed and missed the window for appeal.

The annual markings had undergone a change process and were re worded.

The Complainant scored a hybrid 2/3 categorisation on the revised wording.

Pre 2021   1 does not meet expectation

                    2 Partially meets expectations

                    3 Fully Meets expectations

                    4 Exceeds expectations

2021 onwards:

                          1 Minimal

                           2 Moderate

                           3 Strong

                            4 Exceptional

In June 2022, the Complainant was advised of plans to vary his workstation between two locations in two different buildings on the site.

The Complainant deemed the second workstation as unsuitable due to “insufficient light “This was accepted by the Respondent, and it was agreed that Mr Fitzpatrick would remain at his original workstation

“As there was better natural light available in that location “

Over the course of July and August 2022, the Complainant alleged that Mr A had spoken to him aggressively on his return post leave. Mr A had identified an incomplete work schedule and spoke inappropriately to Mr Fitzpatrick.

On 31 January 2023, the Complainant received a “Moderate/ Strong “performance rating for 2022. This was appealed but was not disturbed.

By October 2022, the complainant began to seek to explore the global grading for performance on annual review. Human Resources refused carriage of the query as they had no remit in the field.

In March 2023, the Complainant raised a grievance which incorporated his experienced difficulties with his Team Lead, Mr A.

Ms Ita Hallisey investigated the grievance.

In her outcome report in June 2023, Ms Hallisey found that “allegations of verbal harassment made by Tony are not substantiated. “She found that Mr A no longer worked at the plant and

 “Therefore, will no longer have any direct interaction with Tony Fitzpatrick “

On 13 August 2023, the Complainant raised a complaint of Discrimination on grounds of age and race at the WRC. He had commenced extended sick leave from the business.

The Complainant resigned his employment on 1 January 2024, which the Respondent sought him to reconsider, but did not receive a response.

Preliminary Issue: Time limits.

The Respondent initial written submission advanced the argument that the complaint fell outside the statutory time period for consideration.

The Complainant had reflected 31 January 2023 as the last incident of Discrimination. This was the date when the Complainant received his annual performance appraisal for 2022, which was unrelated to his disability.

The Complainant had referenced the decision taken to

 “Vary the seating arrangements for the complainants’ team “

as of June 2022, from where the request for reasonable accommodation emerged.

This did not place an occurrence of Discrimination within the obligatory 6-month period prior to reception of the complaint.

The Respondent has marked that the WRC complaint as received on 13 August 2023.

In responding to the Complainants application for an extension of time due to reasonable cause, Counsel for the Respondent, Mr Collins BL relied on the caselaw in

Ervia v Healy PWD 2020, ADJ 19238 

Brothers of Charity Services Galway v Kieran OToole EDA 177, approved.

Where neither ignorance of the law or reliance on internal procedures amount to justifiable reasoning for failure to submit a claim within the relevant period.

In drawing on the Labour Courts previous adoption of the reasoning in Cementation Skanska v Carroll DWT 0338

It is for the complainant to show that there are reasons which both explain the delay and afford an excuse for the delay.

….

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.

Counsel outlined that the Respondent had engaged with the Complainants Surgeons recommendations for natural light. This manifested in the revised workstation which incorporated a window seat in June 2022, which placed the complaint “well out of time “in the context of his August 13 claim before the WRC.

The Respondent accepted that the Complainants statement on his reduced visual capacity constituted a disability. This was neither probed nor disputed.

The date given by the complainant to the last act of Discrimination emerged from the complainant’s dissatisfaction with his performance assessment ratings which culminated in workplace grievances, which had been comprehensively addressed by the company.

The circumstances of the case emanated from the complainant’s dissatisfaction on how his performance was managed and got tangled with the ratings he received rather than any issues about accommodating the complainant’s visual impairment.

The Law does not save the complainant on time limits as his claims are out of time

The Respondent had proposed a varied presence across two work buildings to reflect the site expansion in June 2022

Building 1    Monday Wednesday and Friday

Building 2     Tuesday and Thursday

The Complainant was heard on his reticence to occupy building 1 due to insufficient light. This was accepted by the Respondent. The revised wording of performance review for calendar years 2021 and 2022 were not linked to the complainant’s disability.

The claims remain out of time.

Evidence of Adrian Mc Carthy, Site Facilities lead by affirmation.

Mr Mc Carthy had a long organisational acquaintance with the complainant. His role was to schedule technicians in maintenance.

He had no recollection of the complainant raising the issue of natural light prior to June 2022.

He was aware that the complainant did not want to move to building 1 due to the reduction in natural light. He agreed he could stay in building 2 and “we wouldn’t push for him to go back to building 1”

As far as he knew he remained in position in building 2. There were no further requests from the complainant.

The Complainant did not cross examine.

In clarifications, I asked Mr Mc Carthy is there was a record of this communication? No material record existed as communicated orally.

Evidence of Ms Ita Hallisey by affirmation:

Ms Hallisey worked in Employee Relations and carried global experience in the field.

She conducted the interviews into the complainant’s grievance.

She identified a once off violation   of dignity which did not amount to bullying. The September incident was hearsay.

The Complainant was permitted to remain in building 2. Input from occupational health was not needed as the complainants stated visual impairment was taken at face value.

During cross examination, Ms Hallissey was asked if she had   ever inquired into the complainant’s quest for reasonable accommodation.? She answered no.

During clarifications, Ms Hallisey confirmed that the company did not operate a reasonable accommodation policy. The Complainant had not requested reasonable accommodation.

In conclusion, Mr Collins argued that the Respondent had worked with the complainants’ statement of need for proximity to light when they accommodated a consolidated position at workstation at building two. He was no longer required to base himself in building one. This had its origin in June 2022.

The incidents that intertwined with this arose from the complainant’s negative reaction to successive year ratings 2021 and 2022 calendar years. Interpersonal issues were investigated and not substantiated outside of an acknowledgement that Mr A had raised his voice towards the complaint. Mr A had departed the business.

I have been given this case with the objective of my reaching a decision in the case of the claim for Discrimination on grounds of disability and refusal to grant reasonable accommodation.

I am satisfied that the complainant has lived with a disability as provided for in Section 2(1) (a) of the Act

“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,

It is important that I set the scene for my investigation at very outset.

This is not an isolated investigation under the Industrial Relations Act, Data Protection, Defamation, Health and Safety, the Company’s Performance Review Policy of 2021 or the Dignity at Work Policy of 2017.

It is an investigation conducted under Section 77 of the Employment Act 1998, from where my jurisdiction is drawn.

It will come as no surprise to the parties that I now revisit the absence of an identifiable policy on reasonable accommodation, a topic discussed at hearing.

I saw this as the facts of this case come in the shadow of the landmark cases such as:

Nano Nagle School v Marie Daly [2019] IESC, 

 where the Supreme Court provided a welcome clarification on the principles surrounding reasonable accommodation, Section 16 of the Act

.” appropriate measures “to enable a complainant to manage limitations experienced in their role.

Tartu Vangla C-795/19

 Emphasis of an individualised assessment, in this case, hearing capacity, if providing reasonable accommodation would permit the Estonian prison officer perform essential duties to avoid dismissal.

 Irish Prison Service and Robert Cunningham, Labour Court EDA 2434, September 2024

This extended voyage through the Court system returned to the Labour Court and determined that Mr Cunnigham, Prison Officer was not covered by Section 2 of the Act as he did not have a disability.

Mr Murphy in his evidence did not accept that his report was congruent with Dr Lims, He was quite clear that he did not believe the Complainant had a disability in 2015, and he had no difficulty with recommending his return to work and carrying out control and restraint duties. His warning re not lifting heavier than 20kg was standard advice after surgery and to allow muscle build back up. Mr Murphy is his evidence stated that he had no difficulty with the Complainant returning to what he described as combatant duties.

 The Court has no medical expertise and relies heavily on medical evidence in cases of this nature. The fact that the medical experts, both witnesses for the Respondent, viewing the issue from the perspective of their own specialities, could not agree that the Complainant had a disability back in 2015, is a factor the Court has to have cognisance of.

UN Convention on the Rights of Persons with Disabilities

EU Directive 2000/78

The topic of Discrimination on grounds of disability and consideration of requests for reasonable accommodation have exercised specialist tribunals such as the WRC, the Labour Court and to the highest Courts in this Country and in Europe.

It goes to the core of this case, that the complainant had managed his disability with the full support of the respondent from his recruitment, his undisputed high-performance ratings and standing at the business until the year 2022.

Unlike Ms Daly or Mr Vangla, he had not grappled with the requirements of Section 16 (1) of the Act

 Nature and extent of employer’s obligations in certain cases.

16.— (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

The Complainant came to this case from a high level of success and effectiveness in his role, but from January 2022, this changed for him as he believed that he had been wrongly cast as an underachiever.

Section 6 of the Act provides the law on Discrimination

Discrimination for the purposes of this Act.

6.(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

Discrimination by employers etc.

8.— (1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee, and a provider of agency work shall not discriminate against an agency worker.

To conclude this preamble, I suggest that this employment would benefit from a Policy on Reasonable Accommodation to illustrate a clear distinction between performance, interpersonal conflict and Discrimination.

The Investigation:

My investigation has been focussed on

The Preliminary Issue:

1 Is the complaint of August 13, 2023, within the statutory time limits, or is it part of a continuum?

 2 If I have the necessary Jurisdiction, was the Complainant discriminated against on disability grounds?

Nature and extent of employer’s obligations in certain cases.

16.— (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

(2) In relation to—

(a) the provision by an employment agency of services or guidance to an individual in relation to employment in a position,

(b) the offer to an individual of a course of vocational training or any related facility directed towards employment in a position, and

(c) the admission of an individual to membership of a regulatory body or into a profession, vocation or occupation controlled by a regulatory body,

subsection (1) shall apply, with any necessary modification, as it applies to the recruitment of an individual to a position.

(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as "appropriate measures") being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

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

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance

Section 77(5)(a) sets down the statutory time limits associated with this claim.

(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.

(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 Complainant has nominated January 31, 2023, as the most recent date of Discrimination.

The WRC identified at an early stage that this claim may have been received outside this period. The Complainant requested an extension of time due to administrative time and procedural lags associated with his efforts to resolve matters internally.

I am satisfied that those efforts were directed at seeking a correction in both performance reviews and an application to seek to challenge interpersonal conflict with Mr A rather than an application for reasonable accommodation.

Mr Mc Govern requested to be considered under “a continuum “argued in Cunnigham and County Cork VEC v Hurley EDA1124, where an extension of time was not deemed  necessary.

Section 77 (5) deals with a situation in which there are a series of separate acts or omissions which, although not forming part of a regime are sufficiently connected so as to constitute a “continuum”.County Cork VEC v Hurley EDA1124. 

Counsel for the complainant  condensed the argument in the alternative made by the complainant   himself for an equitable latitude in time limits on reasonable cause, reliant on County Louth VEC, Pearse Brannigan and the first instance decision in Ervia and Healy, in which I was the decision maker prior to appeal .

Mr Collins had a narrower argument that the law on employment equality did not provide for the inclusion of the 13 August 2023 complaint made by the complainant. It was simply out of time.

In this, he echoed Mc Kechnie J in County Louth VEC and Equality Tribunal and Pearse Brannigan [2016) IESC 40,  

that the statutory period in which the complaint is made

“Does not operate as a defence point or its equivalent only”. He said that it must be treated “as a condition precedent to the exercise of the Tribunal's jurisdiction and cannot be stood down, save in accordance with the provisions of the Act”

 In considering the facts put forward in the Preliminary argument,  I heard a very strenuous argument from the Respondent that the complaint did not comprise an occurrence of alleged Discrimination within the 6 months immediately preceding the submission of the complaint on 13 August 2023. Neither did it satisfy a continuum as permitted under Section 77 (5) of the Act.

While it is peripheral, yet somehow topical, the Parties are reminded of the background of the Equality and Family Leaves Miscellaneous Provisions Bill, currently in pre legislative scrutiny. It is envisaged that time limits to submit a claim to the WRC will be extended as part of the planned amendments. It is not yet law.

I have reflected on the facts as presented in this case.

I could see that the complainant struggled to recollect events some years past. He was tired of the journey and his quest for resolution. In that, I could see his lethargy.

The Respondent submitted a slight bewilderment as they communicated a clear conviction that Mr  Fitzpatrick had not fallen from grace at the business an had been supported in managing his disability . They were not aware of barriers attributed by him to his disability .

As I listened to both parties evidence and accompanying arguments, I thought about the words of

Dr Maya Angelou, the American Poet and Activist

I have learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel 

In many ways ,in my opinion,  that is the backdrop to the facts of this case.

The question, I must ask myself in law , can I establish there was an occurrence of alleged Discrimination within the cognisable period permitted under Section 77 (5) of the Act or under Section 77(6)(a).? Can I extend time?

Distinguishing the facts in Brannigan, Mr Fitzpatrick came to this case with a very positive work record and sense of fulfilment up until he received a perceived lesser performance review in February 2022. The background to this was a site change in how performance was measured and classified from August 2021. That same year hosted a change in line Manager but had Mr Mc Carthy omnipresent on site. I noted that the Complainant had recorded a limited interest in how performance reviews worked.

Mr Brannigan was opposed by the VEC in seeking to augment his complaint form with historical look back incidents. Mr Fitzpatrick did not have historical problems. He had a strong reputation at the business, managed his job well and managed his disability through 2-year medical reviews. This is not disputed.

My angst on the scatter gun approach to complaint formation from the start was not based on irritation but on a genuine sense of confusion, what exactly did the complainant want me to investigate?

 As the pillars moved so many times, from a clear disappointment at ratings to a viewpoint that he was unfairly treated at work. Those matters alone find a natural home in Industrial Relations. The Complainant brought a disappointment in how the disputes resolution mechanisms were actioned at the business and how he believed he was deliberately excluded.

However, he has not provided me with an occurrence of Discrimination within the 6 months preceding 13 August 2023. He was absent from the business for the majority of 2023 on sick leave

Both Performance reviews predated the 14 February 2023, the permitted cognisable period, cast as they were on 8 February 2022 and 31 January 2023.

The proposal to bi locate across building one and two arose in June 2022 and did not prompt an internal grievance.

 Instead, I accept Mr Mc Carthys evidence that the complainant was not redeployed to building 1. He maintained his position at home and building 2, which undisputedly met his requirements for light. I was also encouraged by the positive measures taken during 2020 to fluorescent light his homework space.

I asked the complainant at hearing, if he had raised a grievance when his June 2022 request for a workspace assessment was not met? He did not have any medical reports to support this application. He had not raised a grievance.

The Staff relations difficulties had their origin in July 2022 and were episodic until September 2022.

The Complainant was on extended sick leave from January 2023 to his date of resignation of January 1, 2024.

The Complainant argued that time should be extended to 12 months as

1 the Dignity at work policy was not observed

2 He was not permitted to examine evidence

3 He was not provided with an appeal

These were procedural concerns rather than concerns specific to disability and reflected the high level of vulnerability the complainant said he experienced.

I have gone back in time to the Labour Courts consideration of Cork VEC v Hurley EDA1124, 2011, approved in O’ Toole in 2017

The facts of this case centred on a claim by a Teacher, Ms Hurley, that an earlier resolved complaint of discrimination had tainted her chances of being re-employed.

Ms Hurley was unrepresented at hearing and argued continuum manifested on each occasion she was refused employment as the policy of refusal was omnipresent and had not ended.

Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur IRLR 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an employer pursues a policy or practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the policy or practice is discontinued. Hence an aggrieved party could maintain a claim in respect of acts or omissions which occurred in pursuance of the policy or practice regardless of when the act or omission occurred. There is, however, authority for the proposition that an act occurring after the presentation of the Complainant’s complaint may not be taken into account when determining whether there was a continuing act.

The Court considered both parties positions and could not permit application of S 77(6) (a) or ultimately S 77(5) as they could not establish an occurrence in the cognisable period so as to ground an investigation.

I find myself in the Hurley and O’ Toole domain in this case, rather more than I find myself in the domain of

Ervia.

Ervia was decided on the Payment of Wages Act, where the complainant sought some space as a lay litigant and an extended internal process delayed referral to WRC.

In Hurley, the complainant sought to test the parameters of Section 77 on Employment Equality.

The Complainant in the instant case was unable to tell me in oral evidence what delayed his referral to the WRC. He had previously submitted that the Respondent had failed to address his “any of my concerns relating to unfair treatment due to my disability “

I cannot accept this as an accurate pronouncement of the facts as the complainants’ documents reflect that at the fore front of his mind was to correct the performance reviews and restore his good name.

I could not establish an occurrence of alleged Discrimination or refusal to grant reasonable accommodation either during the 6 months preceding the complaint of August 13, 2023, Section 77(5) I cannot extend time to 12 months as the complainant has not explained or excused his delay to my satisfaction. Cementation Skanska v Carroll and Primark and Darina Grogan EDA 2622.

Neither can I establish a continuum as required in Section 77(6) (a) as I cannot  find a regime that maintained a regime of Discrimination. The Complainant was not compelled to forsake his approved work bench in building 2 at any time in the narrative of this complaint.

I received the requested photograph from the Respondent post hearing, which demonstrated the seat adjacent to the window in building 2, which carried the complainant’s initials. I am also mindful of his supported homework space from 2020.

 He was however actively engaged in a workplace interpersonal conflict, which had been investigated and he was at odds with the outcome.  He remains at odds with that outcome.

I cannot extend time or construct a continuum to bring this case any further.

I would have preferred to see the complainant represented in his workplace issues.

I find for the Respondent on the Preliminary Issue. The claim is statute barred as the events complained of fall outside the limitations of Section 77(5) and Section 77(6)(a) and do not constitute a continuum.

Hurley and O’ Toole applied.

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

Section 79 (3) (a) permits a Preliminary Investigation of the application time limits.

(3A) If, in a case which is referred to the Director General of the Workplace Relations Commission under section 77, a question arises relating to the entitlement of any party to bring or contest proceedings under that section, including:

(a) whether the complainant has complied with the statutory requirements relating to such referrals,

(b) whether the discrimination or victimisation concerned occurred on or after 18 October 1999,

(c) whether the complainant is an employee, or

(d) any other related question of law or fact,

the Director General of the Workplace Relations Commission may direct that the question be investigated as a preliminary issue and shall proceed accordingly.

I find for the Respondent on the Preliminary Issue.

 The claim is statute barred as the events complained of fall outside the limitations of Section 77(5) and Section 77(6)(a) and do not constitute a continuum.

Hurley and O’ Toole applied.

Statutory Time Limits / Preliminary Issue.