Complainant

Respondent

Parties

Eva Marie  McEvoy

Naas General Hospital

Representatives

None

Tracy Downes, Health Service Executive

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-00073738-001

24/07/2025

The Complainant commenced employment as a Multitask Attendant in the Catering Department of the hospital in 2023.  She claims she was discriminated against on the disability ground in relation to conditions of employment, and when the Respondent failed to provide her with appropriate measures (reasonable accommodation).  She also claims to have been victimised within the meaning of s. 74(2) of the Employment Equality Acts, 1998 (as amended).  The Respondent refutes all claims.

The Complainant outlined that her role in the catering department involved heavy lifting and pushing and pulling of trolleys amongst other tasks.  She has a history of back pain.  She suffered a back injury in March 2025 and went on sick leave.  She was medically certified by her GP on 6 June 2025 as fit to return to work on 16 June 2025 but on light duties only.  A return-to-work meeting was held the following week to discuss what the Complainant could do on her return to work.  At that meeting, Ms Fitzsimons, Catering Manager, told the Complainant that an occupational health referral would be necessary, and that she could not return to work until an occupational health report was obtained.  Ms Fitzsimons outlined that there was no such thing as light duties in the catering department.  The Complainant suggested tasks which she could perform but was told that it is a ‘share the load’ job and management could not be seen to facilitate her in this regard, even if short-term, as other employees would have a problem with it.  The Complainant asked to be facilitated to do lighter duties at least until the occupational health referral was completed.  This request was refused.  The Complainant felt her request for reasonable accommodation was not considered, and had it been any other disability, other than back pain, it would have been accommodated.   

The Complainant was assessed by occupational health on 27 June 2025.  That report certified the Complainant as fit to return on modified duties.  The Complainant was advised that as the medical report stated she could not lift in excess of 5kg and it restricted pushing and lifting, there were no duties within the catering department that the Complainant could do safely.  The Complainant outlined that exploring the possibility of another temporary position within the hospital was not considered even though she repeatedly stated she wished to return to work.  Further, she contested contents of the occupational health report including that she continued to be in pain, and that she couldn’t lift more than 5kg.  Ms Fitzsimons told her that management had no option but to adhere to the report, and if she disputed its contents, she was required to furnish her own medical report.  The Complainant felt she should not have to get another medical report, and at her own expense.  Her GP certificate and the occupational health report commissioned by the Respondent stated she was fit to return on modified duties, she asked for this reasonable accommodation, but it was not given.  There was no consideration of modified duties whatever until 29 July 2025.  Ultimately, the Complainant was assessed again by occupational health in August 2025, and certified fit to resume her normal role within the catering department. 

The Complainant outlined that the manner in which her absence was managed had adverse financial implications for her, as she has been placed on TPP payment instead of sick pay; she is not entitled to any form of social welfare; and there is no potential to earn over-time payments.  Her quality of life has also been adversely affected due to stress arising from the situation.  She paid for a private MRI to get a diagnosis to speed up her return to work.  She was harassed to get back to work to resume her normal job and, yet on the other hand, was frustrated in her efforts to resume work.  The Complainant feels she did everything that was asked of her and feels she was unnecessarily prevented from returning to work.  She feels the Respondent did not want to accommodate light duties.

In cross-examination, the Complainant confirmed that no incident report form had been filled out in relation to her back injury in March 2025.  The Complainant accepted that her GP letter dated 6 June 2025, was copied to the Respondent on 9 June 2025.  The Complainant accepted that she had not yet been seen by a specialist at that time and was only examined by occupational health on 27 June 2025.

In response to questions from the Adjudication Officer,  the Complainant outlined: “I can’t say if I have a disability as I am waiting for a specialist appointment.  So, I don’t know if I have a disability until I speak to my specialist”.  The Complainant outlined her claim of victimisation as follows: “I wasn’t listened to before the HR meeting [on 29 July 2025]” and “penalisation for me was that I was been treated unfairly because I was trying to get back to work.  I had to go to occupational health etc. and that was unfair”. 

Ms Downes, on behalf of the Respondent, submitted that the Respondent has a duty of care towards the Complainant.  The objective of the Respondent is to keep absences as short as possible, but an employee must return to a safe environment especially where the role is physically demanding.  Ms Fitzsimons was primarily responsible for managing the Complainant’s absence.  HR are not ordinarily involved in managing every absence.  HR only became involved in the management of the Complainant’s absence when Ms Fitzsimons had exhausted what she could do within her department.

Oral Testimony of Ms Fitzsimons

The role performed by the Complainant of ‘Multi-task Attendant’ is a very physically demanding job.  The witnesses’ role is to ensure all staff are safe and to ensure a safe working environment.  She looks at each absence on a case-by-case basis.  On 6 June 2025 the Complainant emailed to say she was fit to resume work on light duties.  Light duties are not an option in the catering department.  All tasks, shifts and locations at which a multi-task attendant is required to carry out work require lifting trays, pots, pushing and manoeuvring trollies, and being on your feet for the full shift.  Light duties could not be accommodated within the catering department. 

The Respondent’s absence policy required a referral to occupational health.  That was arranged as quickly as possible.  The Complainant attended an appointment on 27 June 2025.  Management had to be guided by that report.  As the witness is the head of the catering department, she can only look at facilitating the Complainant within that department.  The report issued by occupational health was very specific – not fit to resume her role – and may only be fit to return if suitable modified duties excluding any tasks involving manual handling of loads exceeding 5kg as well as activities  requiring repetitive pulling, lifting or bending.  The witness outlined the tasks performed in catering.  All tasks involve lifting, bending, pulling and pushing.  Loads routinely exceed 5kg.  While there are manual handling aids, these aids do not remove the requirement for the foregoing.  The working environment is fast paced and physical. 

The Complainant suggested tasks she felt she could do within the catering department.  These did not exclude lifting, bending, pulling and pushing.  The witness must also consider other staff.  She did not want to unduly burden other staff and compromise their safety.  There are no major roles or tasks not involving less than 5kg of weight.  Till shifts in dining still require standing, mopping floors, emptying bins etc.  Every shift and location requires physical work of a nature the Complainant was certified as unfit to do.  The Complainant never requested lighter duties outside of the catering department.  The medical report suggested a follow up review in 3 months and that was the time frame the witness was looking at.  She requested the Complainant to continue to submit certs as she was unfit for her normal role and to continue to receive sick pay entitlements.  The Complainant requested a meeting with HR.

In cross-examination, the Complainant put to the witness that she had suggested to her that she could do lighter duties in ICU and discharge shifts as she would not have to bring the trolley on those shifts, but that this was not considered by the witness.  The witness responded that she said light duties were not available on these shifts or any other shifts because they all involve physical work.  The witness confirmed that it was not until mid-July that light duties outside of the catering department became an option, but that this was outside her remit.

Oral testimony of Ms Kehoe

The witness outlined that her role involves advising management with respect to 1100 staff members.  Management are required to follow the absence policy, and it can take time to work through that policy before the issue comes to HR.  Ms Fitzsimons spoke to HR and she was advised, in line with the absence management policy, that an occupational health referral was first necessary before any decision could be made with respect to the Complainant’s absence and return to work.  Management are required to be guided by the contents of that medical report.   The Respondent wants an employee back to work as soon as possible but only if safe to do so.  The report raised several concerns.  A restriction of 5kg is very low, and it is very difficult to identify any tasks within the catering department that did not involve the very things the Complainant was certified as unfit to do. 

A review was conducted of positions within the wider hospital area after HR became involved in late July 2025, however, no suitable position could be sourced in which it could be guaranteed that the Complainant would not have to handle loads exceeding 5kg.

The witness advised Ms Fitzsimons that further information was required from occupational health, and given the Complainant was contesting that she was in pain and could lift in excess of 5kg contrary to what was stated in the occupational health report.  A second referral was arranged, but these things take time.  However, it was expeditated and took place on 8 August 2025.  The Complainant was certified fit to return to the catering department without restrictions.  She has since returned to work.

There was no reference to an existing back problem when the Complainant was interviewed for the role and during pre-medical clearance for the role. 

In cross examination, it was put to the witness that the Complainant never said she had a disability when she was hired.  That was accepted by the witness.  It was put to the witness that the Complainant was given lighter duties on her return to work in August 2025 and therefore it was doable.  The witness responded that this was the case only because she had now been certified fit to resume her full duties.

Closing

Ms Downes, in closing, stated the Respondent was very restricted in what it could do because of the 5kg limit in relation to manual handling.  The Respondent was not on notice of a disability at the time the Complainant commenced employment as there was no reference to same or any concerns regarding her back within the pre-medical clearance.  The Respondent could only act on the contents of the occupational medical report.  The Complainant was not discriminated against on the disability ground or victimised.   It would have been a disproportionate burden on the Respondent to remove all the prohibited tasks from the Complainant and give them to other staff within the department.

The Respondent contends there is no evidence that the Complainant has a disability within the meaning of the Employment Equality Act, 1998.  While she was absent for several weeks and it is accepted she was unfit for work, it is not accepted that this constitutes a disability.  The burden of proof is initially on the Complainant.  The Respondent relies on Melbury Developments v. Arturs Valpeters (EDA0917).  The Complainant has not met the standard of proof required to shift the burden to the Respondent.  The Respondent relies on Nano Nagle School v. Daly [2019] E.L.R. 221 with respect to s. 16 of the Employment Equality Act, 1998.  It was a disproportionate burden to accommodate the Complainant within the catering department.  A review of other roles outside of that department was conducted.  No suitable roles could be identified.  The Complainant was fully supported by management, and management adhered to all relevant policies for the safety of the Complainant.

Relevant Law

Meaning of ‘disability’

The meaning of disability for the purposes of the Employment Equality Act, 1998 (as amended) (“the Act”) is provided for at s. 2(1) of the Act as follows:

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person”.

In Customer Perception Ltd v. Leydon (EED0317) the Labour Court held that an injury that resulted in pain came under the definition of a disability:

“Taking the ordinary and natural meaning of the term malfunction (connoting a failure to function in a normal manner), the condition from which the complainant suffered in consequences of her accident amounted to a malfunction of parts of her body. It thus constituted a disability within the meaning of the Act”.

The Labour Court noted in Government Department v Worker (EDA 094)  that while the definition in the 1998 Act does not refer to a minimum level of disability, a de minimis rule must be applied such that “effects or symptoms, which are present to an insignificant extent, would have to be disregarded”.

In Mr A v. A Hospital (DEC-E2012-192) the Equality Officer noted with respect to the definition of disability in the Act:

“While it is a generous definition, it cannot be interpreted to mean that all employees are protected on the ground of disability every time they develop minor illness or injury. In the circumstances of this case, to include complaints like a temporary stomach bug or the common cold within the definition of disability would be an absurd interpretation of the Acts. In some contexts, the H1N1 virus or back pain may be considered disabilities within the statutory meaning but certainly neither were severe enough in the complainant’s case to be covered under the definition of disability in the Acts . . . I accept the respondent’s contention that where there is doubt, a disability must be diagnosed by a medical practitioner. In the context of this case, it is the complainant’s responsibility to seek this diagnosis in the first place. He did not declare it at his pre-employment medical nor did he take steps during his employment to seek diagnosis. Therefore, in the context of this case, I find that none of the conditions or illnesses (either individually or collectively) cited by the complainant fall within the definition of disability under the Acts.”

In Concrete Manufacturer v. A Worker (EDA1330) the Labour Court noted in relation to the definition of disability under the Act:

“This is a broad definition which can encompass any injury or illness whether it is temporary or permanent, curable or incurable. However, it is to be assumed that the Oireachtas did not intend that every injury no matter how minor, nor every short-term illness that may inevitably occur in the course of normal living, can be classified as a disability. It is a question of degree, and in particular the extent to which the condition may hinder the full and effective participation of the person concerned in professional or working life on an equal basis with other workers.”

In this case the complainant alleged he suffered an injury resulting in back pain.  The Labour Court noted that the medical certificates put in evidence “. . . merely recorded that the Complainant has symptoms arising from an injury . . . [t]hey provide no indication of the extent of the Complainant’s injuries.  They do not disclose the nature or extent of the doctor’s examination.  Nor do they discount the possibility that [the doctor] formed her opinion solely on the basis of what she was told by the Complainant.”

In St Margaret's Recycling & Transfer Centre Limited v. Ryszard Smoktunowicz (EDA1822) the complainant suffered from lower back pain but failed to establish that he had a disability for the purposes of the Act.  The Labour Court noted that the medical certificates relied on by the complainant “. . . referred to lower back pain without giving any further clarification or details . . . [a]t the material time, other than symptoms of lower back pain, there was no evidence furnished to the Court to support the contention that he was suffering from a disability within the meaning of Section 6(2) of the Acts”. 

Section 6 of the Act provides:

“(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 . . .

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are . . .

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”) . . . .”

Thus, a disability which is temporary in nature can come within the protection of the  Act.  In Customer Perception Ltd the Labour Court acknowledged given the provisions of s. 6 that “ . . . it is clear that a temporary malfunction comes within the statutory definition.”

Section 8 of the Act provides:

“(1) In relation to . . . (b) conditions of employment . . . an employer shall not discriminate against an employee . . .

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

Reasonable Accommodation

The failure to provide reasonable accommodation is regarded as an independent cause of action (Government Department v. A Worker, EDA 0612).  Section 16 of the Act provides:

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

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

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

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

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

(i) the financial and other costs entailed,

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

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

(4) In subsection (3)—

"appropriate measures", in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself . . . .”

In A v. Government Department [2008] ELR 354 the Labour Court held there is a positive duty on an employer to provide reasonable accommodation and that the duty is proactive in nature.

“The duty to provide special treatment or facilities is proactive in nature. It includes an obligation to carry out a full assessment of the needs of the person with a disability and of the measures necessary to accommodate that person’s disability.”

The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case (Humphries v. Westwood Fitness Club [2004] ELR 296).  It may include an examination of the degree of impairment arising from the disability and its likely duration and involves a consideration of the medical evidence available.  Where an employee is not fully capable of performing their role, the employer is obliged to consider what, if any, reasonable accommodation may be available by which the employee can become fully capable.  The employee should be permitted an opportunity to engage in this process.  All possible alternatives must be explored on a case-by-case basis to see if an employer can facilitate a reasonable accommodation for a person with a disability (Employee v. Telecommunications Company, DEC–E2009–073.)

Comparator

To ground a claim for discrimination on the grounds of disability, a complainant must be able to compare themselves to a person without a disability or to a person with a different disability.  A complainant must demonstrate that they were treated less favourably than that other person in a comparable situation (Health Service Executive v. Judyta Zielinska, EDA 261). 

Section 28(1) of the Act provides:

“For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows . . . (f) in relation to the disability ground, C is a person with a disability and D is not, or vice versa, or C and D are persons with different disabilities . . . . ”

Victimisation

Section 74(2) of the Act defines victimisation for the purposes of the Act as:

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

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

A claim of victimisation must be assessed independently of the allegation of discriminatory treatment.  An employee alleging victimisation is required to establish the primary facts from which it can be inferred that the employer has victimised the employee and that these facts are of a sufficient weight to raise a presumption of discrimination for them to meet the burden of proof required of them and for the burden of proof to shift to the employer.

The act or acts which result in victimisation must be connected to a reliance on rights under the Act. In Moriarty v. Dúchas (DEC-E2003-013) the Equality Officer outlined that it “is necessary that a complainant demonstrate the connection between his or her actions in relation to defending entitlements under the Act and the treatment complained of”.

In Department of Defence v. Barrett (EDA1017), the Labour Court held that the definition of victimisation at s. 74(2) contains three ingredients. It requires that:

“1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

Redress

Section 77 of the Act provides:

“(1) A person who claims—

(a) to have been discriminated against or subjected to victimisation . . . in contravention of this Act may, subject to subsections (3) to (9), seek redress by referring the case to the Director General of the Workplace Relations Commission”.

Separate decisions

Section 79 of the Act provides:

“(1) Where a case which has been referred to the Director General of the Workplace Relations Commission under section 77 . . . (1A) (a) Claims to have been discriminated against on more than one of the discriminatory grounds shall be investigated as a single case, and (b) claims both to have been discriminated against on one or more than one of such grounds and to have been penalised in circumstances amounting to victimisation may, in an appropriate case, be so investigated, but a decision shall be made on each of the claims”.

Section 82 of the Act provides:

“(1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case . . .

(a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral under section 77(1) which led to the decision;

(b) an order for equal remuneration from the date referred to in paragraph (a);

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77;

(d) an order for equal treatment in whatever respect is relevant to the case;

(e) an order that a person or persons specified in the order take a course of action which is so specified . . .

(4) The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c) or (1)(f) shall be—

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000,

or

(b) in any other case, €13,000.”

Findings

The Complainant referred her complaint to the WRC on 24 July 2025.  On this date she was absent on sick leave since 20 March 2025.  She cited the most recent date of discrimination as 16 June 2025.  The cognisable period for this complaint is 25 January 2025 to 24 July 2025.

Did the Complainant have a disability within the meaning of the Act during the cognisable period for this complaint (i.e., 25 January 2025 to 24 July 2025)?

The Complainant asserts that she has a disability within the meaning of the Act. In support of this claim, she relies on GP medical certificates, an MRI report, and an occupational health report. However, during her oral evidence, the Complainant stated that she was unsure whether she has a disability for the purposes of the Act, as she is awaiting specialist opinion.  The Respondent refutes that the Complainant had a disability at any time material to this complaint. 

The onus of proof rests on the Complainant to establish that her condition meets the definition of a disability under the Act.  She must also prove that the Respondent was on notice of that disability.

I am satisfied for the reasons set out below that the Complainant had a disability within the meaning of the Act within the cognisable period for this complaint, and that the Respondent was on notice of that disability from 2 July 2025.

It is not in dispute that the Complainant provided medical certificates to the Respondent for the period:

·        7 to 21 April 2025 - this medical certificate stated the Complainant “. . . is suffering from: back injury”. 

·        22 to 30 April 2025 - this medical certificate stated the Complainant “. . . is suffering from: back pain”.

·        7 to 15 June 2025 - this medical certificate stated the Complainant “. . . is suffering from: back pain”.

·        The Complainant attended a physiotherapist in relation to her condition and is awaiting specialist opinion.

In Customer Perception Ltd the Labour Court accepted that pain arising from an injury constitutes a disability for the purposes of the Act.  It does not appear from reading that case that a specialist report or specialist opinion was put into evidence.  Generally, in the absence of additional medical or specialist opinion, back pain, of itself, does not necessarily constitute a disability, but may instead represent a symptom of an underlying condition which could potentially amount to a disability (Concrete Manufacturer and St Margaret's Recycling & Transfer Centre Limited).

The Complainant accepted during cross-examination that the Respondent had not been put on notice of any back condition prior to her absence commencing on 20 March 2025. I note that no evidence was presented to the hearing regarding the nature or severity of the injury allegedly sustained by the Complainant in March 2025 or the circumstances in which it arose, save for the agreed fact that no workplace incident report had been completed in respect of that injury.  I further note that the medical certificates relied upon by the Complainant referred only to a "back injury" and "back pain" without providing any further particulars.  These certificates provide no indication of the extent of the Complainant’s injuries and do not disclose the nature or scope of the medical examination carried out by her GP. 

The Complainant included within her written submission to the WRC the radiological findings of an MRI on the lumbar spine dated 24 April 2025 which noted disc changes for which specialist opinion was recommended.  It does not appear from the evidence presented to the hearing that this report was copied to the Respondent at any time prior to the complaint being presented to the WRC.  Thus, the medical certificates provided by the Complainant were the only medical information available to the Respondent until it received the occupational health report on or about 2 July 2025.  Accordingly, I am not satisfied that evidence was furnished to the hearing to support the contention that the Respondent was on notice of a disability prior to the receipt of the occupational health report on or about 2 July 2025.

The Complainant attended an occupational health review on 27 June 2025.  It appears from the evidence given at the hearing that the Complainant’s manager and or HR received a copy of the occupational health report on or about 2 July 2025, and that a copy of the report was forwarded to the Complainant on 4 July 2025.  The occupational health physician noted that: the Complainant “reported a history of lower back issues accompanied by left-sided sciatica”; “an MRI has confirmed the presence of a discogenic disorder”; and that “[o]n examination, findings related to her lower back were consistent with the history provided”. The report proceeds to outline that the Complainant “continues to experience persistent lower back pain with associated sciatica . . . [and she] is not currently medically fit to return to her full duties in her existing role, due to its physically demanding nature  . . . [but that she] may be fit to return if suitable modified duties can be identified. These should exclude any tasks involving manual handling of loads exceeding 5kg, as well as activities requiring repetitive pulling, lifting, or bending.”

As noted by the Labour Court in Customer Perception Ltd,the term ‘disability’ must only be given the meaning ascribed to it by s. 2 of the Act, and given the Act is a remedial social statute, it should be construed as widely and as liberally as possible consistent with fairness.  The complainant in that case sustained injuries following a road traffic accident, which resulted in pain and reduced movement in her shoulder, back and neck.  The Labour Court concluded that it had “no doubt that the complainant’s condition amounted to a disability within the meaning of the Act” in that it came within the meaning of “malfunction” as provided for at s. 2(1)(c) of the Act.

The Labour Court noted in Government Department that while the definition in the Act does not refer to a minimum level of disability, a de minimis rule must be applied such that “effects or symptoms, which are present to an insignificant extent, would have to be disregarded”.  In Customer Perception Ltd the Labour Court also noted that “ . . . it is clear that a temporary malfunction comes within the statutory definition”.Further, as notedin Concrete Manufacturer, in assessing whether a condition comes within the meaning of a disability for the purposes of the Act, “it is a question of degree, and in particular the extent to which the condition may hinder the full and effective participation of the person concerned in professional or working life on an equal basis with other workers.”

In line with the findings of the Labour Court in Concrete Manufacturer, St Margaret's Recycling & Transfer Centre Limited, Customer Perception Ltd and Government Department, I am satisfied that a “discogenic disorder” accompanied with “persistent lower back pain with associated sciatica” which resulted in the Complainant requiring at least 11 weeks sick leave, and which prevented the Complainant from being able to perform her normal tasks until 8 August 2025, comes within the meaning of “malfunction” as provided for at s. 2(1)(c) of the Act, and therefore constitutes a disability for the purposes of the Act.  Accordingly, I am satisfied that for the cognisable period relevant to this complaint, the Complainant had a disability within the meaning of the Act.  However, for the reasons set out above, I find the Respondent was not on notice of that disability until 2 July 2025 when it received the occupational health report.

In conclusion, I am satisfied the Complainant suffered from a disability within the meaning of the Act during the cognisable period for this complaint, and that the Respondent was on notice of that disability from 2 July 2025.

Alleged discrimination

Given the finding above, I am only concerned with acts of discrimination alleged to have occurred between 2 and 24 July 2025 (the latter date being the date the complaint was referred to the WRC) (herein after referred to as “the relevant period”).  The Complainant contends the Respondent discriminated against her in relation to conditions of employment during the relevant period when it: (i) required the Complainant to continue to provide medical certificates during the relevant period even though her GP and occupational health had certified her fit to return to work on modified duties; (ii) suggested she obtain an independent medical/specialist report at her own cost when she disagreed with certain comments in the occupational health report; and (iii) failed to provide reasonable accommodation.  The Respondent refutes all claims. 

The Complainant did not name a comparator(s).  She outlined in evidence that her colleagues had been given reasonable accommodation for other disabilities, but she was treated less favourably because her disability was back related, and therefore, an appropriate comparator was or is a person in the same situation as her (certified fit to resume work albeit on modified duties), but with a different disability or no disability.  This was not disputed by the Respondent. 

Section 85A provides that where a complainant establishes facts from which discrimination may be inferred it then falls to the respondent to prove that the principle of equal treatment was not infringed.  It is not in dispute that the Complainant was instructed to remain on sick leave, at a time when she was certified by her GP as fit to return to work on light duties and certified by occupational health as possibly fit to return (“may be fit to return”) on modified duties (if same could be identified).  Based on the foregoing, I am satisfied that the Complainant has established facts from which discrimination on the disability ground can be inferred.

It is not in dispute that the Complainant’s role is physically demanding.  The Complainant and her union representative met with Ms Fitzsimons on 4 July 2025 to discuss the occupational health report.  It is common case that Ms Fitzsimons stated that she could not permit the Complainant to resume work in the catering department given the content of the occupational health report. 

The Respondent contends that as the Complainant was certified by occupational health as unfit to resume her normal job and, as there were no lighter duties in the catering department, she was not fit to return to work.  Therefore, it was a procedural requirement to continue to submit medical certificates to explain the absence and to ensure the continuation of sick pay.  The Respondent submits that, in circumstances where the Complainant disputed some of the findings within the occupational health report, including the finding that she was not fit to lift in excess of 5kg, it was reasonable and in keeping with established practice to seek an independent medical or specialist report from the Complainant.

The Complainant at all times accepted that she was not fit to resume her normal job.  However, she contends that once the occupational health report certified her fit for modified duties, she should not have had to continue to submit medical certificates during the relevant period.  Nor should she have had to furnish a medical/specialist report at her own expense when she disagreed with elements of the occupational report. 

I am satisfied that the Complainant was not treated less favourably on the disability ground in respect of the foregoing.  No evidence was presented at the hearing that any other employee who had been certified as unfit to perform their normal duties is, was or would be exempted from the requirement to submit medical certificates.  I accept the Respondent’s submission that, in such circumstances, all employees are required to continue to provide medical certificates, particularly while enquiries are being undertaken to determine whether modified duties can be accommodated.

I accept the Respondent’s submission that the suggestion the Complainant furnish a medical/specialist report at her own expense was made only because the Complainant was refuting elements of the first occupational health report (i.e., that she was in pain and that she could not lift in excess of 5kg).  I accept the Respondent’s submission that it is normal practice within the Respondent organisation to request a medical report in such circumstances and that it is a requirement that applies to persons with and or without a disability, or a different disability, in a comparable situation.   

In conclusion, I am satisfied that the foregoing requirements (i.e., the requirement to continue to provide medical certificates where certified unfit for normal duties but fit or potentially fit for lighter/modified duties, and the request for a medical report where an existing report or elements thereof is contested) do not constitute less favourable treatment of the Complainant because of her disability, and were necessary given: (i) she was not fit to perform her normal duties and pending enquiries to determine whether modified duties could be accommodated; (ii) so that she continued to receive sick pay (for as long as she was entitled to it); and (iii) to legitimately contest elements of the existing occupational health report.  I accept the submission of the Respondent that a person without a disability and or a person with a different disability has been or may be required to comply with these requirements.

I make the following findings with respect to the Respondent’s alleged failure to provide appropriate measures (reasonable accommodation).

It is not in dispute that the Complainant was not permitted to return to work pending the outcome of the occupational health review.  An occupational health appointment was scheduled for 27 June 2025.   The Occupational Health Report was received by Ms Fitzsimons and or HR on or about 2 July 2025 and copied to the Complainant on 4 July 2025.   That report stated inter alia that the Complainant continues to experience back pain and that she “. . . is not currently medically fit to return to her full duties in her existing role, due to its physically demanding nature  . . .  but may be fit to return to work if suitable modified duties can be identified.  These should exclude any tasks involving manual handling of loads exceeding 5kg, as well as activities requiring repetitive pulling, lifting or bending . . . I recommend a follow-up face-to-face review in three months to reassess her condition and provide an updated opinion” (my emphasis).

The Complainant and her union representative met with Ms Fitzsimons on 4 July 2025 to discuss the occupational health report.  It is common case that Ms Fitzsimons told the Complainant that she was obliged to adhere to the recommendations of the report, and that the Complainant could not resume working in the catering department as there were no duties the Complainant could perform within that department in accordance with the advice of the occupational health physician. 

It is the Complainant’s case that the Respondent failed to consider reasonable accommodation, resulting in her being compelled to remain on sick leave despite the occupational health physician certifying that she could perform modified duties (subject to a 3 month review) and that no consideration was given to the lighter duties she had identified within the catering department or to roles outside of the catering department until HR became involved in the matter in late July 2025. 

In Nano Nagle v. Daly [2019] IESC 63, a decision opened by the Respondent in the instant case, the Supreme Court found that s. 16(3) of the Act placed a mandatory duty on the employer to provide reasonable accommodation unless this would impose a disproportionate burden on the employer.  As noted by the Labour Court in Occipital v. Joseph Hayes (EDA184):

“The duty imposed on an employer to provide reasonable accommodation carries with it a concomitant obligation to make an informed and considered decision on what is or is not possible, reasonable and proportionate.  If all of the options that may be available are not adequately considered the employer cannot form a bona fide belief that they are impossible, unreasonable or disproportionate” (my emphasis).

It is common case that Ms Fitzsimons was of the view on 4 July 2025 that there were no roles whatever in the catering department that could be performed in accordance with the advice of the occupational health physician.  Ms Fitzsimons evidence was that every shift within the catering department required physical work and therefore the Complainant’s return to work could not be accommodated.  She outlined that if she allowed the Complainant to do some of the lighter tasks only such as working on the till on the dining room shift, as proposed by the Complainant, she would have had to reassign all physical tasks required to be done on that shift to other employees – this constituted a disproportionate burden as she had a duty for their health and safety also.  It was common case that Ms Fitzsimons did not consider any roles or tasks outside of the catering department.  In her evidence at the hearing, she stated that she did not have the authority to do so, as the matter fell outside her area of responsibility and could only be addressed by HR.

I accept Ms Fitzsimons did not have authority to look at modified duties outside of the catering department.  However, it was Ms Fitzsimons evidence that she had consulted with HR both prior to and following receipt of the occupational health report on or about 2 July 2025.  HR were aware from this date of the recommendations contained within the report and of Ms Fitzsimons’ opinion that the Complainant’s disability could not be accommodated within the catering department.  Yet, despite repeated requests from the Complainant for a meeting with HR, a meeting did not take place with HR until 29 July 2025.  It was only then, which was after the Complainant had referred her complaint to the WRC, were alternative roles outside of the catering department considered by the Respondent.  As noted above, the duty on the Respondent to provide reasonable accommodation is proactive in nature (A v. Government Department).  I do not accept that it was for the Complainant to request lighter duties outside of the catering department.

Considering the foregoing, I am satisfied the Respondent failed to comprehensively assess what reasonable accommodation, if any, could be provided to the Complainant, when it failed to extend its analysis beyond roles within the catering department during the relevant period.  I note that this analysis was eventually performed in early August 2025 after the Complainant had referred her complaint to the WRC. 

In conclusion, having considered all the evidence, I find the Respondent’s failure to comprehensively assess what reasonable accommodation, if any, could be implemented for the Complainant during the relevant period (i.e., 2 July to 24 July 2025) amounts to discrimination against the Complainant on grounds of disability.  I decide it is just and equitable to order the Respondent to pay the Complainant compensation in the amount of €2,500.  In determining the foregoing amount of compensation, I have considered the effects on the Complainant and the reasoning of the Court of Justice of the European Union (CJEU) in Von Colson v. Land Nordrhein-Westfalen Case 14/83 [1984] ECR 1891, wherein the CJEU emphasised that awards for the effects of discrimination should be effective, dissuasive and proportionate.

Victimisation

A claim of victimisation must be assessed independently of the allegation of discriminatory treatment.  The Complainant is required to establish the primary facts from which it can be inferred that the Respondent has victimised her and that these facts are of a sufficient weight to raise a presumption of discrimination in order for her to meet the burden of proof required of her and for the burden of proof to shift to the Respondent.

The Complainant outlined that her claim of victimisation was as follows: “I wasn’t listened to before the HR meeting [on 29 July 2025]” and “penalisation for me was that I was been treated unfairly because I was trying to get back to work.  I had to go to occupational health etc. and that was unfair”. 

I am satisfied the Complainant did not take an action of a type referred to at s.74(2) of the Act.  Therefore, I find the Complainant has not discharged the burden on her to establish facts from which victimisation may be presumed, and therefore the burden does not shift to the Respondent to show that no victimisation took place. 

I decide the complaint of discrimination under the Employment Equality Acts, 1998-2015 is well-founded in part.  Therefore, I order the Respondent to pay to the Complainant compensation of €2,500.

I decide the complaint of victimisation under the Employment Equality Acts, 1998-2015 is not well-founded.

Discrimination. Disability. Appropriate measures.