Complainant

Respondent

Anonymised Parties

A Complainant

A Large Retail Store

Representatives

Cathy Mc Grady instructed by Farrell McElwee Solicitors LLP

Dajana Sinik, Ibec

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-00078727-001

17/12/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00078727-002

17/12/2025

The complainant commenced employment with the respondent in January 2005. He worked as Line Manager in several stores from 2010 onwards. In April 2024, his role changed to Customer Assistant. He was paid €557.20 gross per week. In recent years, he was diagnosed with Alzheimer’s disease. He claims that he was discriminated against on disability grounds and was not afforded reasonable accommodation within his employment. He further claims that he was harassed due to his disability. The second complaint is under the Payment of Wages Act that wages were unpaid after he had exhausted the company sick pay entitlement.

The respondent denies all complaints in full. The respondent submits that reasonable accommodation was afforded and the complainant was assisted until declared medically unfit for work. The respondent submits he was paid in accordance with the company sick pay scheme.

Summary of Parner’s Evidence

The witness said that her partner was previously a Line Manager and was demoted after a diagnosis of probable Alzheimer’s disease. She put his employment contracts into evidence. She said she attended all hospital appointments and some workplace meetings. The specialist consultant had recommended that he work fixed daily shifts. In September 2022, the complainant’s diagnosis was confirmed as Alzheimer’s.

The complainant’s rosters were put into evidence. She said the fixed daily shifts recommended were not implemented from the outset. In February 2023, she contacted the union official who wrote to the respondent about the consultant recommendations.  

She said that earlier in October 2022 she had assisted her partner in writing a letter to the respondent which highlighted the fixed work schedule required and that it had been said to him that he was working too slowly. Separately, she put into evidence a text message sent in October 2022 to a HR contact person on his welfare at work. The reply was that his issues should be raised within the store itself.

In October 2023, she accompanied him to an occupational health visit. She said that all recommendations in this report were not implemented. There was a further appointment with the specialist in November 2023 who confirmed the occupational health recommendations.

She said there was another occupational health visit in January 2024 with the same recommendation for written memory aids. She said that these memory aids were not implemented. She said there was an addendum report which issued later in January 2024 which she only became aware of in the respondent’s WRC submission. She said the addendum report recommendations were not implemented either.

She said her partners role changed in April 2024 and there was no written agreement for this change. She said he attended the specialist again in June 2024 and these medical reviews were always made available to occupational health.

She said that in June 2024, a fixed daily attendance had been put in place. She said he attended work when he was on annual leave on only one occasion. She said she accepted that a time would come when he needed to stop working. She said that as far as she was aware the recommended accommodations were not put in place. She said he was well capable of homecare tasks once written reminders were in place.

In November 2024, after he attended occupational health, she said she does not know what the respondent query was which required a later addendum.

She attended several meetings with the Deputy Store Manager. The complainant did not attend, and she nor the manager raised this as an issue. She highlighted the issue of a support group at these meetings although it was left to her to inquire further. She said that if a planogram or written instructions were in place these would have assisted him.

She received notes of the workplace meeting she attended. She did not see the notes of the second and third meeting which were included in the respondent’s WRC submission. She got in touch with the support group who advised following the specialist advice and who were open to the respondent contacting them. She said the respondent did not reach out to the support group. She clarified with the respondent that her partner’s intention was to continue working a full week. She said that a new technique for stocking shelves was introduced which may have caused him difficulties.

She said that the respondent sought an urgent medical report in June 2025. She said this was unattainable as no medical appointment was scheduled until early in July 2025. She drafted a letter with the complainant to inform the Store Manager that there was no medical appointment scheduled.

As the respondent was pressuring the complainant to attend a meeting with medical clearance that he was fit to return to work she then instructed a solicitor. The solicitor sent a letter on his behalf to the Store Manager.

She said the complainant was again referred to occupational health for a full assessment and was placed on paid sick leave. After six weeks, the paid sick leave stopped, and he did not return to work.

The Store Manager replied by letter that he could not meet or respond to the solicitor due to company policy.

She said her partner attended the specialist at the beginning of July 2025 and a report was sent to the Store Manager which confirmed that he remained fit to work in his current role with accommodations. He attended for a further occupational health review at the end of July 2025 which questioned whether he was fit for his role. The occupational health report said he was unlikely fit for his role although left the ultimate decision for management.

In September 2025, the complainant received a letter from the Store Manager. A meeting then took place between his union official and store management. She confirmed that the notes of this meeting are not disputed. The outcome was that a third medical opinion was required.

She received confirmation that the store would pay for this medical opinion. The complainant remained on unpaid leave as she sought a list of specialists. The specialist undertook the review in December 2025.

Under cross-examination, the witness was asked about the dates of discrimination as per the WRC complaint form. She was asked about the welfare meetings she attended in the store and the notes received. She replied that she only received one set of notes.

She was asked why she did not raise her partners attendance at these meetings. She replied that when she got the invite she just went along with it and the initial meeting was described as a chat. She was asked whether the store provided accommodations. She replied that fixed daily hours were provided and she was aware of a new technique for stocking shelves. She did not accept that sufficient accommodations were put in place.

She was asked about her partners attendance at work when on annual leave and the genuine concerns within the store about his welfare. She said she was aware of this isolated incident and replied that he was well capable of carrying out duties at home.

She was asked about the appointment in June 2025 and whether it was genuine for the Store Manager to believe it was a medical appointment instead of an appointment for a driving test. She confirmed that the letter stated appointment.

She was asked about the third medical opinion and the report which was not submitted to the respondent. She replied that the report did not recommend a return to work.

Closing Statement

Ms Mc Grady referred to the written submissions and particularly the case of Nano Nagle School v. Marie Daly. She submitted that the incidents of discrimination spanned over several years. There was a continuum of discriminatory treatment and failure to provide reasonable accommodation so all matters should be considered. She said there was a delay in implementing a fixed daily shift as per the occupational health advice. The other recommendations of written instructions (planograms) were not implemented and no outside supports or external funding was sought. The new technique introduced for stocking shelves went against the recommendations of occupational health and the specialists treating the complainant.

In June 2025, it was submitted that pressure was put on the complainant to turn around a medical report in a few days when he did not even have a scheduled medical appointment. This treatment of the complainant could be described as harassment. She submitted that it was not appropriate to deal with his accommodation needs under the standard sick pay policy.

She said that the respondent delayed obtaining a medical report until September 2025 which meant the complainant remained out of work. This was inconsiderate and against medical advice that he should continue with his work routine. She submitted that the sick leave policy did not place the responsibility on the complainant or his partner to obtain a third medical opinion which was what occurred in this case.

She concluded that the Payment of Wages complaint concerned the ceasing of the complainant’s wages as per the sick pay policy without the necessary authority as prescribed under the Act.  

Summary of Grocery Manager’s Evidence

The witness stated that he worked alongside the complainant for 3-5 days a week depending on the rostering. He said that he was notified by the Deputy Store Manager that the complainant had Alzheimer’s. He said the work routine involved meeting him at the clocking machine and setting him up on the aisle. He also ensured he had a rubbish cage. He said he would break down stock to make it easy and to lighten the workload. He said initially there was no change to the shift pattern and then the complainant was accommodated with mostly 10am-6pm. He noticed a deterioration with the complainant’s work as he could be upset or could wander off tasks occasionally. He said he could leave stock on the shop floor which was a potential hazard. The complainant occasionally showed up on days not rostered or would ring and ask if he was due in. He said the complainant was late some days, although these were not followed up. He noticed a deterioration in his capacity for information. He said he did not receive the letter allegedly sent in October 2022. He said although it can be a complex section to work in, it made sense to keep the complainant in an area he was familiar with.  He said there were no unreasonable expectations on him, and he tried to help as much as he could.

Under cross-examination, he was asked about the change to the system of stocking shelves. He replied that this was done to assist him. He confirmed there were no written reminders or planograms put in place as recommended. He said a planogram was not feasible due to the shelving layout. He said he was unaware of the meetings and specifics discussed between the Deputy Store Manager and his partner. 

Under re-examination, he confirmed he was involved in the roster changes and that any changes made were to assist the complainant.

Summary of Deputy Manager’s Evidence

The witness said that once he became aware of the diagnosis, he supported the complainant by meeting him at the clocking machine and ensuring his health and safety. He said the new stocking technique made it easier for the complainant. He said he explained to his partner that planograms would not work as there was no adequate space and written instructions would block prices. He said it did not make sense to give him written pages. He could see that it became increasingly difficult for the complainant to retain instructions and it was more challenging as time went on.

When there was a customer incident in the store, he wrote to his partner to set up a welfare meeting. A reduction in hours was suggested although it was confirmed that he wanted to remain on full-time hours. When he was informed of an appointment in June 2025, he presumed that this was a medical appointment. He said he did not receive a letter from him in October 2022.

Under cross-examination, he was asked why a safety review did not take place to allay any health and safety concerns. He replied that he was doing what he thought was right at the time for a colleague. When asked about the introduction of written instructions as recommended, he replied that this was not feasible. He assisted the complainant as a colleague from day to day. He confirmed there was no ergonomic assessment.

He was asked why he introduced a new stocking technique which was against occupational health advice. He replied that this new technique was for convenience to break the work down by separating the products.

He was asked about his engagements with the complainant’s partner and if he contacted the support group as suggested. He replied that he did not see this as his role and he did the best he could.  

He was asked why there was an urgent need for a detailed medical report in June 2025. He replied that it was the Store Manager who requested this. 

Summary of Store Manager’s Evidence

The witness said he had extensive experience as Store Manager across several stores. He knew the complainant over many years. The Deputy Manager had informed him of the complainant’s illness. He said he noticed a deterioration in his work. He did not want an incident to arise with the store left liable. His intention was to be pro-active so there was clarity on whether he could undertake his role. In June 2025, he wrote the letter to the complainant to obtain a detailed medical report. He presumed that the appointment referred to in June 2025 was a medical appointment. He had sought advice from HR and until he had a medical report he put the complainant on paid sick leave for his own well-being.

He said the medical report posed questions as to his ability to work and this was followed by a meeting with the union official. He said the recommendations made could not all be implemented.

He said that due to conflicting medical reports, a third medical opinion was needed. He consulted with occupational health who recommended that the complainant should seek this third opinion and the store would pay for it. Afterwards, he sought this medical opinion from the union official although it was not forthcoming. He said the normal procedure for the recoupment of medical costs is through the store itself.

He said the store had accommodations in place for the complainant to work fixed daily shifts. The complainant was also supported by colleagues. He said he had never seen the handwritten letter from the complainant dated 13th October 2022.

Under cross-examination, he was asked when fixed shifts were put in place. He said these were implemented from 12th March 2023 which are evidenced from the clock reports and rosters.

He was asked about the number of times the complainant was late and whether these ceased when fixed day shifts were in place. He replied that he needed to check this.

He was asked about an addendum to the medical report and why the queries sought were not copied to the complainant. He replied that all background information is normally shared with the complainant at the occupational health visits.

He was asked about the urgent need for a detailed medical report in June 2025 even though the complainant’s medical appointment was early in July 2025. He replied that he believed the complainant had an appointment in June 2025 and he understood a report would be available.

It was put to him that the complainant required a regular work routine and disallowing him to work pending a medical report was not very compassionate. He was asked whether he obtained legal advice or HR support. He replied that he obtained advice from HR which was followed.

He was asked why he did not implement the occupational health recommendations as written instructions were not provided. He replied that he did what was feasible and the complainant was met at the clocking system and assisted where possible.

He was asked whether he sought grants or supports and if a work buddy was considered. He replied that he had no obligation to do this and this came under the HR remit.

He was asked why he applied the normal sick pay scheme, given a request for a third medical opinion was underway. He replied that he applied the procedures when a staff member is unfit for work.

Summary of HR Officer’s Evidence

The witness said that the Store Manager decides when an occupational health referral is made and provides the background information. The role of HR is to offer advice on procedures and policies. As there were conflicting medical reports, there was a requirement for a third medical opinion. The advice of the employee’s own GP may also be considered. She said that occupational health usually advises when a risk assessment is required. There was no advice for one in this case.

It was clarified that as per the policy there is no engagement with third parties such as solicitors as representations are made through recognised trade unions. It was confirmed that the sick pay policy allows for six-weeks’ pay, and the occupation health report at the end of July 2025 triggered the absence from the workplace.

Under cross-examination, she was asked about the policy when there are conflicting medical opinions and if occupational health documents are shared with the complainant. She replied that the policy does not specify how a third medical opinion is obtained. She said she assumed that occupational health share all this information. She said that the Store Manager may have met with occupational health in relation to who should obtain the medical opinion.

She was asked whether HR were aware of the deterioration of the complainant’s health when he was excluded from the workplace. She replied she was not involved in this case. She was asked if a company Employee Assistance Programme was offered. She replied that she did not know if it was offered.

Closing Statement

Ms. Sinik submitted that the complainant had given no direct testimony to establish a prima facie case. The testimony by his partner revealed that the third medical opinion concluded that he was unfit for work and this fact was concealed until disclosed at the WRC hearing.

It was submitted that several welfare meetings were held with the complainant’s partner to discuss appropriate supports. She submitted that the Store Manager had to make a difficult decision particularly as safety issues were arising on the shop floor. She submitted that the occupational health recommendations were taken on board in that pragmatic changes were made to accommodate the complainant. She concluded that the recommendations on planograms were not possible and testimony was given on this by the respondent witnesses.  

CA-00078727-001- Employment Equality Complaint

The Law  

Discrimination

Sections 6 & 8 of the Act prohibit employers from discriminating against employees on the ground of disability.

“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,

[…]

(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”),

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 […].”

Reasonable Accommodation

Section 16 of the Act addresses the extent of the obligations of an employer to provide reasonable accommodation. The relevant parts of section 16 are:

“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.”

Section 16(3) outlines the obligation to provide appropriate measures for an employee:

“(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 16(4) addresses what are appropriate measures.

“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.”

Burden of Proof

Under section 85A of the Act, the burden of proof is on the complainant. If the complainant meets the threshold, it is then for the respondent to rebut the presumption of discrimination.

In Melbury Developments Ltd v. Valpeters [2010] E.L.R. 64 (the “Melbury Developments Case”), at page 68, the Labour Court addressed the burden of proof, finding:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Finding

Prima Facie Case

The complainant has a disability as defined by the Act and this was not disputed at the hearing. The respondent was put on notice of the disability at an early stage once the diagnosis was made. The disability was known and the occupational health reports made several recommendations. The complainant’s partner gave direct testimony and put documents into evidence which questioned whether reasonable accommodations were provided. For these reasons, I decide that a prima facie case or inferences of discrimination have been made which are required to be rebutted by the respondent.

The main issue to be decided in this case is whether reasonable accommodation was afforded by the employer to the employee. Apart from reasonable accommodation, the complainant made complaints that there was discriminatory treatment when he was demoted and that he was harassed due to his disability.

Demotion Complaint

The complainant’s partner gave testimony that the complainant was demoted to Customer Assistant in April 2024. The respondent provided documentary evidence of a signed contract by both parties. Ms Sinik for the respondent raised an objection at the commencement of the hearing that some alleged incidents of discrimination were out of time. The complainant’s representative outlined that there was a continuum of discriminatory treatment and therefore all issues came within the WRC’s remit. It was decided at the outset of the hearing that I would hear the full evidence before deciding whether there was a continuum or if some complaints were out of time.

The demotion took place in April 2024 which is clearly outside of the 12-month limit as the earliest complaint was received by the WRC on 19th June 2025. Although an argument was made of a continuum, I consider this issue as too remote and not within time. I am also persuaded by the limited testimony presented on the demotion. The complainant’s partner submitted there was no agreement and the respondent’s submitted in evidence a signed contract.

For the reasons outlined, I find that the demotion complaint is out of time. I decide this complaint is not well founded.

Harassment Complaint

Harassment is defined as any form of unwanted conduct related to any of the discriminatory grounds being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

14A.—(1) For the purposes of this Act, where—

(a) an employee (in this section referred to as "the victim") is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as "the workplace") or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer,

(ii) the victim’s employer, or

(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,

The complainant’s partner put into evidence the letter from the Store Manager requesting an urgent medical report in June 2025. Given the circumstances at that time, the complainant’s representative submitted that this was harassment due to his disability. Although these actions could be described as inconsiderate given the circumstances, the Store Manager gave testimony that his motivations were to ensure that the complainant was fit to be in work, and he acted in accordance with the company policies. Although the complainant could rightly feel that this was harsh treatment, I find that insufficient evidence was presented that this treatment was directly targeted at his disability. It is equally plausible that any other employee without a disability or with a different disability could also have received a similar robust letter relying on the company policy.

The complainant’s partner testimony described another incident where he was told he was working too slowly in or around October 2022. The respondent witnesses all denied receiving this complaint. I find that this complaint has not been substantiated and is also too remote. 

For the reasons outlined, I find that the complainant was not harassed due to his disability. I decide this complaint is not well founded.

Reasonable Accommodation

The respondent representative outlined that reasonable accommodations were provided to the complainant during his employment. The respondent witnesses outlined the efforts that were made to support the complainant with rostering and with his daily tasks.

The complainant representative outlined that the specific recommendations of written instructions (planograms) were not provided. It was also submitted that the respondent did not provide adequate supports and made no efforts to contact the support group or make enquiries on independent support.

In Nano Nagle School v. Daly [2019] IESC 63 (Nano Nagle Case), the Supreme Court addressed the employer’s obligation to provide reasonable accommodation to an employee. Nano Nagle is of assistance as it describes the concepts of ‘appropriate measures’ ‘and ‘disproportionate burden’ as per the Act. The complainant’s representative particularly relies on Section 16(3)(d) of the Act and paragraph 94 where Mac Menamin J stated:

The duty laid down under s. 16 (3)(d) is mandatory. An employer is to explore the possibility of obtaining public funding or other assistance.’

Ultimately though, each case will have different facts and Nano Nagle at paragraph 89 also stated-

…… The test must be one of fact, to be determined in accordance with the employment context, instances of which are as illustrated in s 16(3). The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee. It is therefore, the duty of the deciding tribunal to decide, in any given case, whether, in reality, what is sought in an entirely different job. Section 16(1) of the Act refers specifically to “the position”, not to an alternative and quite different position.

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] ELR296).

Applying the Facts to the Law

The facts in this case are relatively clear due to the extensive witness testimony supported by documentary evidence-

·        The complainant accompanied by his partner made several visits to occupational health and his consulting specialist and provided all medical reports up until June/July 2025 when matters came to a head. The recommendations on reasonable accommodations were consistent and fixed daily shifts were provided by the respondent.

·        The respondent witnesses gave testimony as to the support and assistance provided to the complainant.

·        The respondent engaged with the complainant’s partner in good faith on the complainant’s needs and the concerns for his welfare within the store.

·        The respondent engaged with the complainant’s trade union.

·        There was acceptance by all parties that inevitably a time would come when the complainant could not undertake his role.

Despite this background and the pro-active actions, it was clear from the testimony that there was a lack of co-ordination and proper assessment of the complainant’s requirements.

The assessment of reasonable accommodation and the concepts of ‘appropriate measures’ and ‘disproportionate burden’ was expanded on in Nano Nagle. It emerged in testimony that no proper assessment was carried out. Although Store Management dealt with referrals to occupational health, and HR provided advice on policies, there appeared to be no plan or enquiries made on what appropriate support was available. The management within the store gave testimony that it was not their role to contact the support group or to enquire about a work buddy. As all options were not considered, a vacuum existed and matters unfolded on an ad hoc basis without any expertise or independent assessment on appropriate adaptations. Fixed daily shifts obviously assisted the complainant although other supports were not enquired into sufficiently. Although his colleagues supported him, matters unfolded without the necessary inquiries having been made. Despite his partner having earlier requested that a support group be contacted by the store, this step was not taken.  Instead, the onus was unfairly placed on the complainant’s partner to liaise with a support group whereas the onus was on the employer, as per the Act. The onus was on the employer to at least make enquiries on supports available. Undoubtedly the Store Management were doing their best although without the necessary expertise or support.

According to Nano Nagle- The duty laid down under s. 16 (3)(d) is mandatory. An employer is to explore the possibility of obtaining public funding or other assistance.’

The fact that the respondent did not explore other supports, this contravenes the requirement in the Act that ‘The employer shall take appropriate measures……’. In 2018, the Labour Court in Occipital v. Joseph Hayes (EDA184) surmised the responsibility as follows-

“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 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”

An independent assessment focussed on the complainant and respondent needs would clearly have benefited both parties. Given that the respondent is a large retail store, a proper assessment or enquiries involving outside supports would not have been a disproportionate burden on them.

In An Employee v. A Local Authority [2002]13 ELR159, similar issues arose in that no external enquiries were made with reliance placed on internal on the job training, which was deemed to be inadequate. 

For the reasons outlined, I am satisfied that as the respondent did not comprehensibly assess what reasonable accommodation, if any, could be provided, that this was a contravention of the Act.

I find that the complainant was not afforded reasonable accommodation. I decide the complaint is well founded.

Redress

In assessing compensation in accordance with section 82 of the Act, I must have regard to the ‘Von Colson Principles’ in that awards should be effective, dissuasive and proportionate (Von Colson v. Land Nordrhein-Westfalen Case 14/83 [1984] ECR1891.

I have considered the following in this assessment-

·        The pro-active steps taken by the respondent witnesses to accommodate the complainant, although insufficient to rebut the inferences of discrimination in full.

·        The effects on the complainant and his partner in having to be so proactive in highlighting his needs and consequently pursue his protections under the Act.

·        The effects on the complainant on his classification as a regular employee under the sick pay policy.

I order the respondent to do the following:

1.      Pay the complainant compensation of €25,000.00

2.      Review their policies with the relevant trade unions on the accommodation and treatment of staff with disabilities.

CA-00078727-002- Payment of Wages Complaint

The Law

Section 5(1) of the Payment of Wages Act 1991 sets out the parameters according to which deductions may be made from an employee’s wages:

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.”

Finding

Having enquired into this matter and based on the evidence submitted, I decide that the company policy set out the entitlement of the complainant to wages when on sick leave and this was a term of employment. I have no authority to alter the sick pay terms of staff agreed with trade unions and as per the contractual agreements. The effects of the treatment of the complainant under the sick pay policy is addressed in complaint CA-00078727-001. It is not appropriate to consider redress for the same circumstances under a different statute.

I decide this complaint is not well founded.   

CA-00078727-001- Employment Equality Complaint

Demotion Complaint

I decide the complaint is not well founded.

Harassment Complaint

I decide the complaint is not well founded.

Reasonable Accommodation Complaint

I find the complainant was not afforded reasonable accommodation. I decide the complaint is well founded. I order the respondent to do the following:

3.      Pay the complainant compensation of €25,000.00

4.      Review their policies with the relevant trade unions on the accommodation and treatment of staff with disabilities.

CA-00078727-002- Payment of Wages Complaint

I decide this complaint is not well founded.   

Reasonable accommodation