Complainant

Respondent

Parties

James  Murphy

Boyles Butchers

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-00073820-001

28/07/2025

The complainant had been employed by the respondent as part of the Wage Subsidy Scheme. The employment terminated on July 11th, 2025. The complainant submits that this was by reason of his disability, contrary to the Employment Equality Act, 1998.

The complainant gave evidence on affirmation.

On Tuesday, 8th July, he contacted his workplace saying he had been experiencing seizures and would not be able to attend work that day.

As the following day Wednesday, 9th July was a scheduled day off, he returned to work on Thursday, 10th July. Approximately two hours into his shift on the 10th, he began experiencing early warning signs of a seizure. he went to the office and tole Olive Boyle that he needed to step outside for some air. While outside, he experienced a partial seizure., Returned after a few minutes and informed her that he had just had a seizure and would need to go home to recover.

Olivesaid,“Youdoknowweareextremelybusy.” And heexplainedthathehada disability, Tuberous Sclerosis Complex (TSC), which causes seizures, and that this condition is beyond his control.

He reminded her that his disability had been disclosed around the time he was recruited  as he was employed through the EmployAbility Service and the Wage Subsidy Scheme (WSS).

She then asked if he could return later that day, once it had got cooler. He  explained that his seizures are not related to the weather and that he was unwell and unable to return.

At that point, Anthony, the owner, who was sitting nearby, looked at me and said, “You can fucking pack it up so,” which he repeated. he asked, “So I’m fired?” and he confirmed, “Yes,” again saying, “You can pack it up so.” As he walked out of the room, he loudly said, “You’d be in hospital if you had a seizure.”

Immediately after this, he contacted his EmployAbility officer and explained exactly what had happened. She followed up with the employer, who claimed that he had simply walked out of work—completely ignoring what was said to me and misrepresenting the situation.

They later made further false comments, including that he had been “bragging” about his earnings and

“Going on about getting a house,” and that this was annoying other staff. In fact, he had simply shared that he was hopeful about being added to the housing list, something he mentioned out of excitement, not to boast or cause any upset.

Theseclaimsappeartobeanattempttojustifyhisdismissal andreflectawiderpattern of hostility and discrimination related to his disability. It was wrong todiscusshisdisabilityallowanceorhousingsituation

There were subsequent exchanges about payment for annual leave which were resolved.

He  was upfront about his disability from the start of his employment and had a reasonable expectation of understanding and support in line with the law. Instead, he experienced hostility, offensive remarks, no accommodation when he had a seizure, and was effectively dismissed on the spot.

The complainant was cross examined. He responded to questions as follows.

He summarised his duties which included preparing burgers and cleaning in the evenings. On the day of the incident there were four staff on duty, and his shift was from 15.00 to 19.00.

The complainant was asked whether he had provided detail to the respondent of hospital appointments and medical certification.

He responded that he had not forwarded actual notifications but had shown one to the respondent.

He confirmed that on July 10th he felt a seizure coming on and asked to go outside where he did indeed have a partial seizure at around 16.10. he returned and told Olive this. She agreed that he should go home and asked if he could come back later. He confirmed that his condition was not weather related and that he could not.

She then asked whether he would be at work the following day and he said that he was not sure (or did not know). As it turned out he had further seizures that evening of the 10th.

When put to him he denied that he said ‘Sure, we’ll call time on it’ or words to that effect.

In relation to the complainant’s submission that Anthony Boyle said to him “if you were having a seizure you’d be in hospital’ it was put to him that Mr Boyle’s evidence would be that he said words to the effect that if he was having seizures he should be in hospital. The complainant did not accept this.

When asked why he clocked out he said this was so he could get paid for the hours worked.

The complainant stated that he also had seizures on Wednesday 9th (his day off) but that he had not told the respondent about these or having had two days of seizures.

He stated that his absence on the 8th was covered by medical certification, but this certification was secured on July 15th and was never submitted to the respondent.

By way of opening submission, the respondent says that while it fully cooperated with the complainant being on the Wage Subsidy Scheme (WSS) it was only made aware of this after the complainant was offered the job.

The complainant was employed as a Counter Assistant, and the job specification was modified to take account of his disability. No information was given to the respondent about the nature of the complainant’s disability and what might trigger problems.

At no stage did the complainant ever complain about reasonable accommodation except in relation to the events of July 10th.

The complainant had a significant record of absence from work, on average about a day a week but never provided the respondent with any documentary evidence of hospital visits etc although he was always accommodated un that regard.

The respondent engaged regularly with the complainant’s supervisor on the WSS including on the complainant’s absences and productivity and understands that this was the subject of conversations between them.

In April as part of the complainant’s three month review the respondent  had expressed reservations about the viability of the employment. It was submitted that the complainant indicated that he was happy to be let go and that he would get another job.

But following these exchanges and a conversation between the complainant and his supervisor things became more satisfactory to the extent that Ms Boyle expressed satisfaction with the complainant on April 13th to the WSS supervisor.

In responding, the complainant did not dispute his level of absence.

However, he denied saying ‘ if you let me go, I’ll get another job’ and says he said ‘if you have to let me go etc’

It was put to him that this was similar to the remark he made on July 10th which he denied.

Olive Boyle gave evidence for the respondent on affirmation.

She described the nature of the business as a butcher’s shop and delicatessen, employing eight staff.

She said that she was very happy to sign up for the WSS when the complainant was employed and he was given copies of all their procedures.

However, at no time was she given any information on the complainant’s actual disability although she asked both the WSS supervisor and the complainant  for information to make sure that she was compliant with whatever responsibilities she had, but she was given nothing. The complainant was facilitated with early finishes once his work was done

She said that the complainant would be absent  about one day a week for various appointments bit she was never given any written confirmation of what these appointments were.

In relation to when the issue came up in April with the WSS supervisor the witness told her that the business just needed to know when the complainant was going to attend for work ad that she needed something for her records. The supervisor undertook to speak with the complainant.

She said that she did question the complainant about his absences, and he replied that if she ‘let him go’ he could get a job anywhere.

Turning to the events of July 8th the complainant told the witness that he would not be in on that day and following his day off on the 9th he arrived in on the 10th not displaying any signs of illness that she could see.

After about an hour he asked her if he could go outside which she agreed  and, on his return, he told her that he was still not well. At that point Mr Anthony Boyle, the business owner came into the office.

She asked if the complainant if went home for a bit might he be able to return when it got cooler, but he said that would not be of any assistance.

The witness asked him whether he would be available for work the following day and he said that he did not know. She said she needed to know to ensure that the business was properly staffed the following day. She accepted that she pushed him on this point and the complainant responded that his disability had been well known and that if she ‘wanted to let him go then let him go’. She saw this a similar to a statement he had made in April to the same effect.

The complainant then made a reference to being let go and she heard Mr Boyle say something to the effect of ‘if that’s the case then that’s the case’.

The complainant then left the office and said goodbye to a female co-worker and the witness says she was left wondering what the position was and whether the complainant would be coming to work the following day. He left the office without saying what was happening.

At no stage was she given medical certification in respect of any of these days.

Anthony Boyle gave evidence on affirmation.

He was in the office when the complainant returned from his break outside. In the course of his conversation with Ms Boyle about his availability for work the following day and her follow up comments the complainant said ‘Will we call it quits, maybe it’s for the best. He denies the complainant’s claim that he said that he should pack it up or words to that effect.

He accepts that when the complainant raised the possibility of him leaving that he said ‘maybe it’s for the best’

The witness said to him that maybe he should go to the hospital if his seizures were so bad.

The complainant particularised his complaint under four headings on the complaint form.

1.      Discrimination on the grounds of disability

2.      Discriminatory dismissal

3.      Failure to provide reasonable accommodation (Section 16)

4.      Harassment and degrading treatment related to my disability

The first two of these complaints turn on the facts of what happened in the short period from 16.10 on July 10th, 2025, and for as long as the conversation referred to in the witness evidence above lasted, probably no more than ten minutes.

There were no other allegations of acts of discrimination, failure to provide reasonable accommodation, or harassment in respect of earlier stages of the complainant’s employment other than from what arose in that brief conversation. Indeed, on the contrary, the evidence was of a high level of support for the complainant, and indeed forbearance in the face of his disability.

The background is also well set out in the submissions and evidence and is not significantly in dispute.

The complainant has a serious disability and regularly experienced manifestations of it such as seizures and epileptic fits. He is permitted to work because he meets certain criteria of the Department of Social Protection regarding his level of productivity and has an external supervisor with whom the respondent liaised regularly. He is a beneficiary of the Wage Support Scheme.

However, his employment record was problematic. At the three months review the respondent was already raising concerns with the external supervisor both about the complainant’s attendance and his failure to provide the business with the normal courtesies in relation to when he would not be at work, and why.

Despite some undertakings to do so in April, and the appearance of some improvement this did not endure.

As will be seen above the first disputed exchange in April between the parties about whether the complainant would continue at work followed this.

The respondent’s version of this is that the complainant said that the business could ‘let me go, I can get any job.’ The complainant’s version of this is that he said, ‘If you have to, let me go’, (the comma here is important!) indicating a preference for remaining in the job, and that he made no comment about finding another job. This was not resolved wither way.

Jumping forward to the final episode in the week of July 8th the complainant was not able to come to work on the 8th, and while he was rostered off on the 9th, he said that he experienced five seizures on that day.

He returned to work the following day and extraordinarily did not reveal anything of these episodes of poor health on the previous two days to his employer.

Indeed, although no medical evidence was submitted about the impact of these episodes, it might be regarded as extraordinary that he returned to work that day at all. The evidence was that he had a rather cavalier attitude to communicating information regarding either his availability or fitness for work.

His claim in his sworn evidence that the absence was covered by medical certification was somewhat misleading, to put it mildly. He did get a medical certificate some weeks after these events but never showed it to the respondent at any time.

Returning to the four complaints set out above the substantive issue is whether the respondent terminated the complainant’s employment and was this by reason of his disability. Both of these criteria give rise to some difficulty.

The complainant made no real attempt to justify the complaints of failure to provide reasonable accommodation or harassment.

While there is considerable dispute about what was actually said the core facts of the incident are not in dispute.

The complainant had begun to feel unwell and wanted to go home. On his return after a short break, Ms Boyle said she needed to know whether he would come to work the following day to ensure the business was properly staffed and the complainant either could not or would not tell her.

This brings us to what exactly was said and which of the versions of what can be relied on as the truth.

The complainant’s version is clear and is replicated for the convenience of the reader from his evidence.

At that point, Anthony, [Boyle] the manager, who was sitting nearby, looked at me and said, “You can fucking pack it up so,” which he repeated. He [the complainant] asked, “So I’m fired?” and he confirmed, “Yes,” again saying, “You can pack it up so.” As he walked out of the room, he loudly said, “You’d be in hospital if you had a seizure.”

The respondent’s version is quite different.

Ms Boyle’s evidence was that the complainant said.

‘If she ‘wanted to let him go then let him go’. She saw this a similar to a statement he had made in April to the same effect.

The complainant then made a reference to being let go and she heard Mr Boyle say something to the effect of ‘if that’s the case then that’s the case’.

The complainant then left the office and said goodbye to a female co-worker and the witness says she was left wondering what the position was and whether the complainant would be coming to work the following day. He left the office without saying what was happening.

From Mr Boyle’s evidence the following appears.

The complainant said ‘Will we call it quits, maybe it’s for the best. He denies the complainant’s claim that he said that he should pack it up or words to that effect.

He accepts that when the complainant raised the possibility of him leaving that he said ‘maybe it’s for the best’

Ther is no truly independent witness evidence to corroborate either version. There is very little to lend credibility to one version over the other. It is clear is that whatever precisely preceded it no effort was made by the respondent to prevent the complainant leaving, although Ms Boyle said she had no idea how things stood with the complainant when he left.

I treat Ms Boyle’s evidence with less scepticism than the other two witnesses just referred to as her evidence on this point, and in general was credible. if Mr Boyle had actually spoken the words alleged by the complainant, why would she have been in any doubt about what was happening, specifically if the complainant had been told to ‘pack up.’?

A factor in this is that the actual dispute between the parties was about whether the complainant would come to work the following day, arising from his disability, of course, but not directly related to it.

While the complainant said he did not know whether he would (and indeed he said that he had several more seizures the evening of that same day) there is, throughout the narrative a remarkable lack of input into the complainant‘s fitness to work by medical practitioners who are the only people qualified to say whether a person is fit to work for medical reasons or not.

Given the complainant’s medical history during that week; unable to work on Tuesday due to seizures, five more on his day off on Wednesday, another at work on Thursday it is mystifying that medical intervention was not considered necessary, or in the case of the respondent, demanded as evidence of the complainant’s fitness to be at work at all.

An employer has an obligation to ensure that its employees are medically fit for the work they are employed to do.

There must surely be a question based on his own evidence as to whether the complainant was fit to attend for work on July 10th, which again could only be answered by a medical practitioner, although as things turned out he was not as he had the seizure described above and had to go home.

While the complainant’s health is the obvious priority here it would also have provided the respondent with the certainty it needed about the complainant’s availability for work.  This was the point Mr Boyle said he was making and, if it was, then indeed it was a very obvious point to make.

The medical certification acquired by the complainant sometime later and not submitted to the respondent is of no help in that regard. He misleadingly and wrongly asserted in his sworn evidence that he had been medically certified, but this is not true, that was only well after the event. It is of no evidential value in this complaint.

The burden that falls on the complainant is to establish a prima facie complaint of discrimination. This requires him to establish facts from which discrimination may  be inferred.

In this case that requires two related steps, the first that his employment was terminated, the second that it was attributable to his disability.

Of the four complaints, I find that no prima facie case has been made out in respect of two of them, the complaint about reasonable accommodation or harassment and these are misconceived.

So that leads first to the question of the alleged dismissal. (The general complaint about discrimination also relates to the  alleged dismissal, so in reality these two are the same.)

Are there sufficient facts from which it may be inferred that a dismissal took place? As will be seen above the facts as to what precisely was said are highly contested. This is a situation in which the concept of the ‘balance of probability’ is not necessarily very helpful.

The ‘balance of probability’ has to be somewhat discernible from established facts; it is difficult for an Adjudicator to simply ‘plump’ for one version of what was said, or, as in this case, might have been said, by the parties unless there is a strong evidential imperative to do so; the credibility of one witness over another, for example. An Adjudicator cannot reach a conclusion simply on the basis of what he thinks was likely to have been said.

There are some reasons to doubt the credibility of the account of both the complainant and Mr Boyle, in relation to the precise words spoken. Each had an interest in presenting a version to the hearing most sympathetic to their case. This is especially true given the conflict in their evidence.

Also, while the conflict between the parties arose from the complainant’s disability it specifically related to whether he was planning to come to work the following day, which is not quite the same thing. His employer had never made any issue previously about his extensive absences due to the actual disability, but the issue here was not the fact of an absence but that he would not tell the complainant whether or not he would be coming to work.

While there is a contested reference to whether Mr Boyle said the complainant should either have been in or should go to hospital there was no reference to his disability leading up to whatever was actually said about the employment coming to an end.

As noted, I have to have some regard to the impressive and sympathetic record of the respondents, and in particular Ms Olive Boyle in accommodating  the complainant’s relatively demanding needs over the period since he became employed, including the fact that the respondent tolerated him missing about one day every week due to some health-related issue, generally without certification or supporting information.

And in her exchanges with him on July 10th there was no suggestion of any negative attitude to his disability. She honestly accepted in her evidence there had been a degree of impatience on her part in the course of the conversation with the complainant about whether he was going to come to work, but this was not related to his disability.

She was simply trying to manage her business. His inability to answer the question may have been genuine but it was part of a pattern of indifference to providing medical or other supporting documentation in relation to his absences. 

It is interesting to speculate what the respondent’s attitude would have been to the complainant simply saying that he was not coming to work the following day. On the basis of the respondent’s previous forbearance there is every chance he would have remained in employment, but we will never know.

The fact remains however, that for all the respondent’s positive disposition up to this incident, the combination of the facts of both the conversation followed by the complainant’s unimpeded departure tilt the case in the complainant’s favour and are sufficient to establish a prima facie case.

The respondent has not done enough to displace the burden of proof and I find therefore that the employment was terminated as a direct result of the conversation between the two men, and this was clearly, if indirectly related to the complainant’s disability. The failure f the respondent to take any remedial steps as the complainant said his goodbyes is telling in that regard.

In making my award, I take account of the complainant’s relatively short service (six months) and part-time status and low wage.

I also have taken account of the contribution of the complainant’s conduct to this outcome, which are not attributable to his disability; his cavalier attitude to compliance with the agreement he entered into in April to notify the respondent (and certify) expected absences due to his disability.

Complaint CA-00073820-001 is upheld and I award the complainant €3,000.00.

Equality, disability discrimination, termination.