ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00056002

Parties:

Complaint:

Date of Adjudication Hearing:  08/10/2025 & 08/12/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015  andSection 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings.

At the adjudication hearing, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised.

All participants who gave evidence did so by oath or affirmation.  Both parties were offered, and availed of, the opportunity to cross-examine the evidence.

Background:

The Complainant contends that he was discriminated against on the ground of disability, was harassed, victimised and refused reasonable accommodation during a period of sick leave.

Summary of Complainant’s Case:

The Complainant alleges that he was discriminated against due to a perceived disability following a non-work-related injury. His employer conducted a risk assessment in his absence and, without input from him, his GP, or occupational health, deemed him unfit to work. This led to his exclusion from work duties and training, and he was told not to attend the site. He claims he was ostracised from his role for months, forced to use all his sick leave, and had to fight for months to return to work, eventually requiring the intervention of occupational health. He asserts that his grievances about discrimination have largely been ignored by the employer.

The Complainant is a Winch Operator. The Complainant has been employed by the Respondent since September 2010. He initially began working as a Winchman. However, in 2021 he began working as a Winch Operator.

A Winch Operator manages the hoist mechanism to lower and raise people or equipment during search and rescue, medical, or other aerial missions where landing isn't possible. They work closely with the pilot and Winchman, providing a critical link to the ground or water, and often have paramedic or rescue training to assist the person being rescued. A Winchman, by comparison, is a trained rescue professional, typically a PHECC registered paramedic, who is winched from the aircraft to a location where they can retrieve a person from danger. The Respondent has dual rated staff. Both Winch Operator and Winchman are classed as Technical Crew roles.

In this case, the Complainant worked as a Winch Operator on a Search & Rescue team responding to critical incidents. The Complainant as a Winch Operator is on the frontline of critical search and rescue incidents.

FACTS AND CASE CHRONOLOGY:

On 26th September 2010, the Complainant commenced his employment with the Respondent on a permanent full-time basis. In 2021, the Complainant took up the role of a Winch Operator. The Complainant, before 2021, had been in the role of Winchman.

On 23rd November 2023, the Complainant was certified as unfit for work due to right shoulder pain arising from an incident unrelated to work.

On 7th March 2024, he attended Dr H Occupational Health Doctor. Upon explanation as to what the Complainant’s role entailed, she concluded that he was fit to return to work as a Winch Operator and advised the Complainant that if the Respondent was uncomfortable with this decision, that they should conduct a Risk Assessment – something the Respondent would go on to do in the Complainant’s absence.

On 13th March 2024, Mr O’Hara’s GP permitted him to return to work on full duties.

On 9th April 2024 the Manager of Flight Operations, instructed that the Technical Crew Manager conduct a Risk Assessment on the Complainant’s role as Winch Operator, without the Complainant present for same.

On 12th April 2024, the Complainant was issued with his Class II Medical from Dr N the Aviation Medical Examiner, which deemed the Complainant as able to attend work without any limitations or need for accommodations. Due to the level of complexity of the Complainant’s role, both he and the Respondent relied on Dr N for his knowledge and expertise in this area. Dr N has a comprehensive understanding of the Complainant’s particular role within the aircraft.

The Complainant returned to work from 15th to 18th April 2024, during which time he attended a return-to-work interview. During this time, there was no mention of a risk assessment or any restriction of his flying duties. In fact, on the 18th April, he successfully completed, and was signed off by Technical Crew Trainer, his ESC and Clein Havens Grip procedure a prerequisite before commencing training on board a helicopter.

On 16th April 2024, the Complainant requested annual leave from 14th to 23rd June 2024, which was granted.

On 19th April 2024 the Complainant discovered from checking the roster that he had been marked as CT (Crew Training) for the foreseeable future.

Also on 19th April 2024, the Complainant was informed by email that the Respondent had received the Occupational Health report, and that the company had conducted a Risk Assessment, without his involvement, and determined that he was not to return to flying duties. The Complainant was deeply upset by this as it was a decision made without his involvement, which flies in the face of all the professional advice.

On 23rd April 2024, the Complainant was asked by the HR Manager to join a Teams call at 2pm wherein feedback on the Occupational Health Report and Accommodations would be provided. The Complainant asked for it to be deferred because he had not had time to read the reports, which had just been delivered. However, his request was ignored, and the call went ahead in his absence.

The decision was made by HR, in consultation with others to place him on sick leave. The Complainant was not informed that this was the outcome until 9th May 2024 by email from the Technical Crew Manager, and had continued to present to work at the Waterford base as per roster until the 9th May.

In the correspondence of 9th May 2024, the Complainant was informed that he was to be returned to SSL effective immediately and that he should have been on SSL since the above-mentioned meeting on 23rd April 2024.

On 10th May 2024, the Complainant requested clarity on whether he could attend a medical course on 21st to 23rd May (which he had been rostered to attend since 19th April 2024) as the Complainant discovered from the roster that he had now been removed from the course without warning or consultation. It ultimately transpired that the decision was overruled.

The Complainant attended the course as normal, however immediately on 24th May 2024, he was rostered as “SSL” again until 23rd of June, with his annual leave having been deleted or removed from the roster. He was marked as “CT” from June 25th to 27th and returned to SSL from July onwards. This was concerning for him because where he held a valid Class 2 medical, he should never be classified as “SSL”.

On 30th May, the Complainant emailed a number of Managers about this.

In response, he was informed that he had been placed on sick leave initially until 31st May 2024, but because an occupational health appointment was not made for the Complainant until 24th June 2024, this needed to be extended. Nobody had informed the Complainant of this, or that he had been removed from the rosters. The Flight Operations Manager  said that the risk assessment conducted was done because the Occupational Health Report said so, however this is not the case. The report actually says:

“He should try to avoid repetitive overhead activities and avoid extreme positions and stretching hard. He should also avoid leaning on the right elbow and avoid high risk manual handling activity. Mr O'Hara informed me that he would be able to avoid these activities at work but, if there is any uncertainty about this, a risk assessment should be done on the role of winch operator to ensure that the above restrictions can be accommodated in the role.”

On 22nd July 2024, a practical assessment was conducted on the Complainant at the Waterford base. In attendance was DW (Technical Crew Manager), and a number of personnel from Duty Crew. The conclusion of both conducted tests were that “(The Complainant) was able to conduct all tasks with nil issues recorded or observed.” In fact, the Complainant in the check-ins 24 hours later, and one week later, showed no issues at all. The tester reported that the level of testing carried out was “extreme”. In conclusion, the report states, “It is my opinion that this practical assessment is beyond reproach and no further practical assessments will be required to allow (him) back on rostered shifts as a Winch Operator.”

On 9th August 2024, still with no return to work in sight, the Complainant was brought to hospital by ambulance feeling unwell as a result of the stress his uncertain workplace arrangements was causing him.

On 19th August 2024, the Complainant, left with no other choice, lodged a formal grievance with the Respondent citing his exclusion from the workplace and treatment – including being forced into unnecessary sick leave.

On 6th September, the Complainant attended a formal Grievance Hearing. Following same, the Complainant faced numerous difficulties, not least the fact that a key party to the investigation resigned with immediate effect, leaving no minutes of the meeting.

On 14th November 2024 the Complainant received an email from Mr L who had chaired the Grievance Hearing, informing him of his decision to uphold the grievance made by the Complainant.

On 20th January 2025, the Complainant received the overall outcome of the investigation from the HR Manager which simply highlighted the points already made by Mr L in his decision of 14 November 2024. It is evident from same that the Respondents were concerned about the appearance of discriminating against the Complainant.

COMPARATORS

It is respectfully submitted that, in respect of the complaint that the Complainant was directly discriminated against by the Respondent on the basis of his disability, the Respondent went on to impute and associate difficulties, which the Complainant no longer had, on the Complainant in not allowing him to return to work. The Complainant identifies Mr McA as his comparator. Mr McA was based in the Waterford base like the Complainant and also a Winch Operator. Mr McA was on sick leave for a period of 11 months. In that time, Mr McA underwent two surgeries; attended his AME; attended OH once; and was returned to duty without any further investigation or risk assessment.

It is respectfully submitted that the Respondent has discriminated against the Complainant, victimised him, and failed to provide him with reasonable accommodation.

THE LAW

Section 6(1) of the Employment Equality Acts, 1998 – 2008 (the “Acts”) provides that:

“…discrimination will be taken to have occurred where a person is treated less favourably than another person is, has been or would be treated in a comparable situation of the discriminatory grounds.”

The definition of disability contained in section 2 of the Employment Equality Acts is set out in a list of broad categories as follows:

 ‘(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 judgment 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”.

The issue of the level of knowledge required of an employer of an employee’s disability in order for the employee to ground a claim for discrimination under the Acts has been largely settled. In Connacht Gold Co-Operative Society v. A Worker EDA0822 the Labour Court held that an employer must be able to demonstrate that it had no actual or constructive knowledge of the employee’s disability in order to demonstrate that it was not aware of the employee’s disability. Interestingly, the Labour Court held that signs, symptoms or indications of the Claimant’s disability in his job performance could contribute to the employer being fixed with constructive knowledge of a disability. This position regarding constructive knowledge was affirmed in Flynn v. Emerald Facilities Services DEC-E2009-065.

It has been established that the treatment of a Complainant on medically certified sick leave or following his/her return or attempted return from sick leave may carry weight in the determination of whether a Complainant was discriminated against on the ground of disability.

In An Employee (Mr OO v. An Employer (No. 2) [2005] ELR 132 the Labour Court found that the Employer had failed to treat the Employee in a sympathetic manner upon his return to work from a psychiatric illness and was instead intent on making his working life difficult. On this basis, the Labour Court upheld the Complainant’s claim for constructive dismissal, despite the Complainant never having raised the Respondent’s grievance procedure.

APPLICATION OF THE LAW:

It is respectfully submitted that in the case at hand, the Complainant suffered from a significant shoulder injury, that caused him to be certified over a prolonged period of time as medically unfit to work. Therefore, it is submitted that the Complainant’s condition comes within the definition of a disability under the Equality Acts, even if temporary, as set out in Customer Perception Limited v. Leydon.

It is respectfully submitted that, at all times, the Respondent was aware of the existence and severity of the Complainant’s disability. Indeed, this was apparent through numerous letters, medical certificates, occupational health reports and conversations as well as the risk assessment conducted on the Complainant’s work thereafter, one of which excluded the Complainant entirely, that the Respondent was aware of the Complainant’s disability.

It is submitted that there is clear evidence as to amount to a prima facie case of discrimination on the ground of disability and that, in those circumstances, the burden of proof must now shift to the Respondent to prove the contrary.

RELIEF SOUGHT BY THE COMPLAINANT:

In Citibank v. Ntoko EED045, it was held that an award of compensation for the effects of discrimination, harassment and victimisation must be proportionate, effective and dissuasive. It is submitted that, in accordance with this principle, the Adjudicator should take into account the particularly serious and sustained level of discrimination and harassment which occurred in the Complainant’s employment with the Respondent along with the significant level of resources available to the Respondent.

The Complainant seeks compensation for the effects of discrimination and harassment perpetrated by the Respondent pursuant the Employment Equality Acts, on the higher end of the Adjudicator’s jurisdiction which, in this case, amounts to €200,000.

Evidence on affirmation was given by the Complainant, Mr O’Hara

He stated that his role is as a Winch Operator aboard the helicopter involved in Search and Rescue (SAR).  He emphasised that he was not “dual rated” as he operated as Winch Operator not Winchman.  Due to a shoulder pain he was on sick leave from November 2023.  It took a number of weeks to get an appointment with a Specialist.  He was seen by an upper limb specialist in Cork who said he had a degenerative condition, not one due to traumatic injury.  The Specialist said he would probably be fit to return to work by March 2024.  The end date on his medical certificate was 14 March 2024.  He attended Dr H Occupational Health when he was on sick leave.  She reported that he was fit to work but not on Winchman duties.  He confirmed that the normal role he undertook was that of Winch Operator.  He received a Class 2 Medical Examiner report (for Crew and Technicians) from Dr N.  He went through the various changes he saw in his rosters from CT (Crew Training) to SSl (short term sick leave).  He described how he was taken off and then re-instated to the medical course in May 2024.  He described his shock at receiving a risk assessment report which was carried out without his knowledge or involvement. 

He outlined his concern about being told by the Company that his sick leave pay would expire and he mentioned many roles he could have filled had they afforded him reasonable accommodation, such as training or admin duties.  On cross examination, he disagreed that a role would have had to be invented for him.  It was put to him by the Respondent’s solicitor that the first OH Report did not give him a ‘clean bill of health’.   He believed that perhaps the Doctor mixed up the Winchman duties with the Winch Operator duties and that he carried out the duties of Winch Operator for some years, not Winchman duties.

He had another risk assessment in July 2024 which he passed with no issues in any area.  He pointed out the complete contrast between the two risk assessments, the first having been completed without him, and the second involving many physical actions.  He said he had to complete a questionnaire with at least 14 questions on it before he could return to work and stated that as far as he knew no one else had to complete such a form.  He described the handling of the grievance he lodged to the Company.  The outcome was his grievance was upheld, he should have been placed on CT not SSL, his sick leave record was to be restored and any salary deductions to be returned to him.  He did get some pay into his bank account, but no payslip or explanation. 

He described the impact on him of the stress caused by the treatment he received and the length of time it took to have resolution which eroded his trust in management.

Evidence on affirmation was given by the former Technical Crew Manager Mr Derek Everitt. 

He stated that in the process of handover as TCM from the previous incumbent he was told to undertake a risk assessment on the Complainant on foot of an OH Report.  He had an issue with the fact that it was going to be a paper exercise and he felt strongly that Mr O’Hara should have been given a practical / flight regime risk assessment.  He had not seen a matrix or scoring system like what was used and the Complainant’s cores kept coming back as intolerable.   He stated his belief that no one else had been treated in the manner that Mr O’Hara was treated and he believed that although he (Mr E) was lead assessor on the first risk assessment, the outcome was predetermined.  He was so exercised about trying to have that first risk assessment withdrawn he eventually resigned from the Company in January 2025.   On cross examination by the Respondent’s solicitor he agreed that he was the signature as lead assessor on the document and said in hindsight he should not have signed it.

Evidence on affirmation was given by Mr Davitt Ward, who took over the TCM role from Mr Derek Everitt. 

He stated that he was involved in conducting the second risk assessment with the Complainant.  He stated that the results of the practical assessment were beyond reproach and that there were ‘nil issues’ with all tasks carried out by the Complainant.  He felt strongly that an employee should always be present when a risk assessment was being carried out.  He gave the opinion that no risk assessment had ever been carried out to the extent that this one was conducted.   On cross examination by the Respondent’s solicitor, he agreed that the ‘extreme’ form of risk assessment was designed by him.  He stated that he wanted to leave ‘no stone unturned’ and if he had carried out half of the assessments, the Complainant would still have been ok to return to duty.  He confirmed he was the author of the 14 questions on the questionnaire, but many others were involved including legal personnel.

Summary of Respondent’s Case:

The Complainant is an employee of the Respondent who alleges that he was discriminated against by the Respondent on the grounds of disability, victimisation, failing to provide reasonable accommodation, conditions of his employment, and harassment in respect of his return to work following an injury. In particular, the Complainant claims that he was wrongly deemed unfit to work, ostracised from his role, removed from training and not permitted to attend his place of work.

The Respondent maintains that all actions taken in relation to the Complainant’s fitness to return to work after his shoulder injury were fully compliant with its regulatory obligations under the European Union Aviation Safety Agency (EASA) and Irish Aviation Authority (IAA) regimes, as well as its duties and responsibilities under Irish employment and equality law.

Operating in a highly regulated, safety-critical sector, the Respondent is required to ensure that technical crew members such as the Complainant meet rigorous physical and mental fitness standards. In line with these requirements, and following medical and occupational health advice, the Respondent undertook both risk and practical assessments to evaluate whether the Complainant could safely perform the essential duties of his role. He suffered no loss of salary during this period. The Respondent also implemented reasonable accommodations, including the provision of a modified immersion suit, to support the Complainant’s return to work while maintaining operational safety standards. While there was some delay in scheduling medical assessments, this was not due to any lack of proactiveness on the part of the Respondent, who repeatedly sought updates and appointments from its occupational health provider. Moreover, throughout the relevant period, the Respondent continually consulted and engaged with the Complainant.

The Respondent is the entity which holds, in part, the contract for the operation of emergency Search and Rescue (“SAR”) services and Helicopter Emergency Medical Services (“HEMS”) for the Irish Coast Guard (as it has done for 25 years). These services are currently provided from bases in Sligo and Waterford. The services are critical in their purpose, and the Respondent is subject to the regulations and codes of the European Union Aviation Safety Agency (“EASA”) and the Irish Aviation Authority (“IAA”). EASA publishes Acceptable Means of Compliance ("AMC") and Guidance Material ("GM") to support the implementation of these regulations and provide practical guidance on how to comply with EASA requirements, including those related to personnel and risk assessments. Moreover, the Respondent is governed by an operating manual which is approved by the IAA, its regulator, and which is it is obliged to comply.

Safety critical element of the Respondent’s function

The heavily-regulated nature of the Respondent’s sector is a consequence of the challenging and demanding environment in which it operates, whereby its personnel must undertake rescue operations where there may be a risk to life, at short notice, in difficult weather conditions on mountainous terrain or at sea.

The safety-critical nature of the Respondent’s service, are made clear by the various regulations under the EASA regime, such as ORO.GEN.200: which mandates that organisations establish and maintain an effective management system, which includes processes for hazard identification, risk assessment, and risk mitigation. In this regard, CHC has a well established Safety & Quality Integrated Database (SQID) system which reports directly into a well established and integrated Safety Management System (SMS).

Additionally, there is AMC1 ORO.TC.105 Conditions for assignment to duties: This section provides for a general initial assessment of technical crew member’s health and, if it should be required, re-assessment of a technical crew member’s health and capacity. Beyond general health, it provides that each technical crew member “be free from any physical or mental illness that might lead to incapacitation or inability to perform crew duties”

Finally, there is the Respondent’s general duty as an employer under the Safety, Health and Welfare at Work Act 2005 to provide a safe system and work environment.

The Complainant’s role

The Complainant is a member of the Respondent’s “technical crew”, e.g. a winch operator/ winchman.

This role involves forming part of a 4-person search and rescue crew. More particularly, the winchman/winch op role involves

• (i) the winchman being lowered by a cable attached to the hovering helicopter out of the helicopter door in order to reach an individual below or
• (ii) the winch operator, who remains at the open door of the helicopter, operating the winch so that the winchman can be lowered safely. The winch operator function requires a great deal of physical and mental robustness, as the safety of the winchman being lowered (often from a great height) - and of any individual in distress who is being rescued - will depend on them.

As the Respondent’s Operating Manual sets out further at Section A.10:

Winching is one of the more complex of the SAR disciplines. The degree of difficulty involved in any one transfer depends on a variety of factors, including vessel size and layout, sea state, wind, aircraft performance, visual conditions, competence of the deck crew, and time available….Winching by its nature is a hazardous activity, that requires complete crew coordination. Known winching hazards include swings (also referred to as oscillations or pendulums), slack cable, shock loading, and spins. These situations, if not managed appropriately,can lead to severe injury, death and / or the loss of the aircraft.(emphasis added)

Following the usage of the winch, there may be the need to perform emergency medical treatment. Therefore, all winch operatives/winchmen are trained paramedics or advanced paramedics accredited by the Pre-Hospital Emergency Care Council.

As a result of the safety-critical and physically demanding nature of the role, and its regulatory regime, the Respondent must ensure, as an absolute priority, that its technical crew personnel are in good physical health, as provided for in the relevant section of the Complainant’s Operations Manual.

The Complainant is a valued member of its technical crew team. He commenced employment with the Respondent on 26 October 2010.  

The safety-critical nature of the Respondent’s role is evident from his contract with the Respondent which provides “It is a condition of your employment that the Company is satisfied as to your medical fitness to carry out the duties of your post.”

Background to the case

In November 2023, the Complainant began to experience issues in his right shoulder , which impacted its function. He subsequently sought and received appropriate support for this complaint, including specialist assessment and treatment. From 20 November 2023, he was signed off from work on sick leave.

On 29 January 2024, the Complainant had a conversation with his line manager, the then- Technical Crew Manager (Mr R). The Complainant, contrary to what has been stated in his submissions, informed him that he attributed his shoulder injury in part to his role as a Winch Operator (in particular holding the hoist cable with an outstretched arm and donning and doffing his immersion suit). The TCM informed the appropriate personnel that a medical assessment was now required in order to clarify the Complainant's ability to return to duty as a Winch Operator.

The Respondent’s Manager, Flight Operations, Mr. A Hyland is the individual responsible to the IAA for ensuring that flight operations are conducted safely and in compliance with the IAA’s required standards. As part of complying with these standards the Manager, Flight Operators has, on several occasions, requested that individuals returning from sick leave (for a variety of reasons) undergo screening by an occupational health provider before resuming their duties. In light of the Complainant’s return to work in late 2024, and the conversation flagged by Mr. R, it was requested that such an assessment be carried out.

On 7 March 2024, an occupational health (“OH”) assessment was carried out on the Complainant by Medmark which found that the Complainant was “medically fit for work” but with a number of qualifications under the heading “Restrictions and Accommodations”:

Mr O'Hara has degenerative change in a joint around his right shoulder. Symptoms from degeneration in a joint can vary in severity and can be intermittent, although the degeneration itself is not reversible.

Mr O'Hara should avoid forcing the right shoulder and arm across the chest and he should avoid forcing the right hand behind his back higher than between the shoulder blades as these movements could provoke pain in the affected joint. He should try to avoid repetitive overhead activities and avoid extreme positions and stretching hard. He should also avoid leaning on the right elbow and avoid high risk manual handling activity. Mr O'Hara informed me that he would be able to avoid these activities at work but, if there is any uncertainty about this, a risk assessment should be done on the role of winch operator to ensure that the above restrictions can be accommodated in the role. (emphasis added)

In the assessment, it was recommended that the Complainant could continue to work as a winch operator (i.e. to continue in the function as he had been doing since 2021) as a result of his shoulder injury, with the significant qualification that a risk assessment was required if there was "any uncertainty" about the Complainant's ability to follow the OH recommendations (e.g. avoiding extreme positions and stretching hard).

Additionally, the Complainant informed the OH assessor that he had been sourced a new immersion suit with diagonal zips to accommodate his shoulder injury by the company.

Medmark noted that the degenerative nature of the Complainant’s injury would require long-term accommodations as it was possible he would be exposed to further episodes of pain.

Internal risk assessment

Given that the OH report recommended limiting the Complainant’s physical range of motion and stated that there was a need for a risk assessment if there was any uncertainty about whether this could be achieved, it was therefore necessary for the Respondent to perform a risk assessment (using its risk management system of hazard identification and mitigation) to assess whether the Complainant could in fact carry out his role as Winch Operator with such a limited range of motion. Contrary to the Complainant’s submission (at paragraph 18), this risk assessment was conducted following professional advice (i.e. the first OH assessment dated 7 March 2024).

On 9 April 2024, A risk assessment was carried out internally by the Technical Crew Manager, Mr Derek Everitt (i.e. the Complainant’s direct line manager) and Lead Assessor on behalf of the Respondent. The assessment concluded that the risks associated with the degenerative nature of the right shoulder of the Complainant and his ability to perform the tasks of a winch operator were too high, with an overall rating sitting in the intolerable region.

In particular, the assessment concluded that while certain activities could be avoided (leaning on the right elbow), the remainder of the activities quoted above could not be avoided while operating a winch on a helicopter due to the very physically dynamic nature of the role and the safety critical nature of the Respondent’s operation. This had the knock-on consequence whereby the Complainant would be unable to engage in a number of tasks core to his role. 9 such tasks were included in the submission.

Of considerable significance was the fact that the same risk assessment outlined the Complainant’s inability to use his right shoulder to properly equip an immersion suit, and noted that the Respondent could and had accommodated this issue:

New Immersion suit sourced by CHC with diagonal zip that closes in the opposite direction and therefore reduces likelihood of aggravation to the right shoulder. On order currently expected delivery date Mid-June.

The assessment was accepted by the Manager Flight Operations, on 16 April 2024.

Second OH assessment

On 12 April 2024, the Complainant was assessed by Dr Dominick Natin, an aeromedical examiner at the Mater Private, and he was issued with a Class 2 licence under the EASA regime. This assessment however, could not satisfy the Respondent’s full obligations in respect of the Complainant’s ability to return to work (further detail on this point has been included in the legal submissions).

On 23 April 2024, an email was sent to the Complainant by the Technical Crew Manager attaching the occupational health report and the associated risk assessment and requesting a call with him to discuss its contents. The Complainant replied requesting more time to consider the documents. At paragraph 18 of his submissions, the Complainant asserts that a call proceeded contrary to his request; this is incorrect, the call was rescheduled;

On 24 April 2024, the Respondent was advised by the Technical Crew Manager that the Complainant was upset with the occupational health report and had requested a further occupational health meeting to discuss the report;

On 25 April 2024, an email was sent to the Complainant by the Respondent’s human resources department with a letter providing an overview of the Respondent’s position. The letter recorded that a decision had been taken to place the Complainant on sick leave given the outcome of the risk assessment. This decision was taken with the benefit of the Respondent's Human Resources function offering guidance based on the OH report and the outcome of the Risk Assessment.

On 26 April 2024 an email was sent by the Complainant to the Respondent’s human resources department requesting re-assessment by occupational health;

On 3 May 2024, an email was sent by the Complainant to the Technical Crew Manager attaching a work certificate from GP and requested for this to be considered during his re-assessment by occupational health;

On 6 May 2024, an email was sent by the Respondent’s human resources department to occupational health seeking clarification as to whether the Class II and the Complainant’s GP clearance affected the occupational health recommendations and seeking clarification as to whether the recommendation for the risk assessment was in relation to the winch operator duties the Complainant was performing (as opposed to the winchman duties);

The Complainant states that on 10 May 2024, he discovered he was removed from a training course scheduled 21 – 23 May 2024 by the Manager, Flight Operations. This is not correct, as the email of 20 May 2024 indicates, a decision was not taken by Mr Hyland, rather Senior Managers in consultation with the Director Human Resources discussed the matter: the issue was raised as to whether the Respondent should permit the Complainant’s attendance as it was still awaiting clarity on the OH report findings and since there was concern around ongoing fitness of the Complainant. In particular, Mr. H had identified a potential issue with the course noting that “It might be worth checking first that CPR training will not aggravate the shoulder injury” – i.e. this was an incident of the Respondent exercising its duty of care towards the Complainant. However, once the risk was adjudged minimal, the Respondent finalised its decision and permitted the Complainant to attend the course.

On 13 May 2024, an email was sent by the Complainant to the Technical Crew Manager and the Manager, Flight Operations advising he did not believe that he should be on sick leave as he was able to perform administrative and course work;

On 13 May 2024, an email was sent by the Manager, Flight Operations to the Complainant advising that he would remain on sick leave until cleared to return to work by occupational health;

On 14 May 2024, an email was sent by the Respondent’s human resources department to occupational health asking for a status update as to an appointment date;

On 16 May 2024, an email was sent by the Respondent’s human resources department to occupational health again asking for a status update on an appointment date;

On 17 May 2024, the Respondent’s human resources department discussed the Complainant’s situation with the occupational health specialist and followed up with an email to the Manager, Flight Operations advising that occupational health stood by their recommendation based on their assessment of the Complainant. Occupational health also clarified that it took into account the specialist report the Complainant had shared when making their recommendation. Occupational health offered to meet again with the Complainant to help him understand the basis of their recommendations and clarify any points.

Medmark appointments were arranged in late June 2024, having been somewhat delayed due to various annual leave arrangements.

An internal practical assessment was held on 22nd July 2024 which found that

 “Adrian was able to conduct all tasked with nil issues recorded or observed. A follow‐up call 24 hours post assessment to determine if any aggravation to his shoulder joint had occurred – nil issues stated to the Technical Crew Manager.” A further week was then required in order to confirm the results of the assessment:   “An additional follow‐up call was conducted on the 29th of July 2024 (1 week post assessment date) – nil issues stated to the Technical Crew Manager.”

Following the practical assessment, in his submissions, the Complainant states that on 9 August 2024 the Complainant was brought to hospital by ambulance feeling unwell as a result of the stress his uncertain workplace arrangements was causing him.

The Respondent was completely unaware of any such incident until it received receipt of the Complainant's submissions and respectfully submits that the Complainant is on full proof for the assertion that any hospital stay was the result of the Respondent's actions.

On 19 September 2024, following a further assessment of the Complainant, Medmark confirmed that upon review of the practical assessment, the Complainant was fit to return to work as a winch operator effective immediately based on the assumption that there was no deterioration in his health since their last review. If there was, a further assessment was required.

The Complainant was, following this period, fully back in his role, subject to practical retraining requirements provided for under the Respondent’s standard operating procedures.

The Complainant submitted 3 grievances on 19 August 2024, 19 September 2024 and 25 November 2024.

Outcome of first grievance was that while the process took longer than reasonably expected, the Respondent was obliged to ensure the Complainant was not placed in a situation which could have resulted in ongoing harm to his health and welfare. No evidence was found to support that any delay in the process was either subjective, unfair or deliberate. It was recommended that the Complainant should have been involved in the initial risk assessment, and this amounted to a procedural error, but that this was rectified in part by his participation in the second OH assessment.  In relation to the allegation of being forced to use of annual leave during a period of absence to cover a short fall of pay being unfair, it was noted that this was a standard and agreed practice that the Respondent had previously proposed to other employees who may have exhausted their contractual entitlements.  It was concluded that any sick leave recorded after 7 March 2024 and that any outstanding salary for this period should be returned to the Complainant (however it is important to note that the Complainant had been kept on full salary for the whole period in any event), with time recorded as sick leave rewritten.

Outcome of the second and third grievances noted that the risk assessment conducted without the Complainant’s participation was reviewed as part of his original grievance, and it was found that while he should have been involved in the initial risk assessment, it was later addressed through a second assessment.   It further asserted that the Complainant’s concerns about being prevented from returning to training and operational duties were also considered at this time, and it was acknowledged that the delays in clearance were procedural rather than subjective, unfair or deliberate. It was found that the actions of Mr H amounted to procedural errors influenced by concerns of the Respondent’s legal responsibility to the Complainant, and as such did not constitute discrimination. The complaint against Mr. T was also not upheld.

The complaints

The Complainant submitted a complaint to the WRC on 20 December 2024 under section 77 of the Employment Equality Act, 1998. He submitted that he has been discriminated against by the Respondent on the grounds of disability, victimisation, failing to provide him with reasonable accommodation for disability, conditions of employment, and harassment.

Legal submission

the Respondent wishes to draw attention to the following legal principles:

First, it is accepted that the Complainant had a disability within the meaning of the Employment Equality Acts 1998 to 2021.

Second, it is accepted that the Respondent had duties to not treat the Complainant unfairly as a result of that disability.

Thirdly, the Respondent had the responsibility to (i) assess to what extent the disability required reasonable accommodation and (ii) if so, whether it could reasonably accommodate that disability in (iii) a pro-active manner, and (iv) if so, to provide such accommodation (see Nano Nagle School v Daly [2019] IESC 63.

Moreover, the Respondent had to coordinate the above legal responsibilities under Irish equality law with its additional legal responsibilities under the EASA and IAA regimes, which are of central importance to this complaint.

The Respondent outlined its regulatory obligations In the submission and outlined the argument that a Class 2 medical certificate does not by itself satisfy any other condition for assignment to duty.

More significantly however, a class 2 medical certificate does not displace the operator’s obligations (i.e. the Respondent’s) obligations under the Operations Manual (OM).

The Respondent’s Operations Manual make clear that a Class 2 medical certificate is not sufficient clearance for a technical crew member to resume their duties as a winch operator, with Section 5.3 “Minimum requirements for SAR technical crew” making it clear that the technical crew member must both:

1. Holds a current EASA class 2 medical certificate
2. Is physically and mentally fit to discharge assigned duties and responsibilities

More significantly, Section 5.11 of the Respondent’s Operating Manual “Return to flying duties post extended absence” provides as follows: a. Following a period of absence exceeding 30 days, an individual will be rostered for a minimum of 2 training days in order to complete the requisite administrative procedures and to regain flying currency and refamiliarization prior to returning to full duties on the SAR roster b. The requirements will vary dependent on the length of, and the nature / reason for the absence. In certain cases, an independent assessment may also be sought.

Given the fact that the occupational health dated 7 March 2024 recommended an individual assessment in the Complainant’s case “if there was any uncertainty”, that is what the Respondent proceeded to do, in order to discharge its duty towards the Complainant, its other personnel and as part of its regulatory obligations as a safety critical service.

Reasonable Accommodation

In Nano Nagle, the Supreme Court noted that the duty to reasonably accommodate isn’t open-ended: an employer does not have to create a different job or make adjustments that effectively redefine the role or impose a disproportionate burden. The focus is on enabling the employee to do the same position (not another one). If, even with reasonable accommodation, the employee cannot fully perform the duties of that position, then no discrimination arises (see Nano Nagle; paras 101-107).

Both the risk assessment dated 16 April 2024 and practical assessment dated 29 July 2024 sought to ascertain the degree to which the Complainant was able to carry out the function of the Winch Operator. In particular the Respondent identified each task and core duties which make up the Complainant’s role (for example donning and doffing an immersion suit, and moving in an immersion suit and deploying and rescuing a mannikin) and the degree to which it could be performed by Respondent. For example, where the Respondent noted an issue with shoulder manipulation, it noted that it could mitigate this issue by providing the Complainant, at its own cost, specialised equipment (the immersion suit with an altered zipper) to take into account his shoulder impairment. This modification was noted by the Complainant in the practical assessment as being “ideal”.

It is clear from both the initial risk assessment and the practical assessment that the Respondent identified each element of the Complainant’s disability which potentially impacted the discharge of their duties, evaluated how that issue could be mitigated, or whether it actually impacted their role, and came to a conclusion on the Complainant’s capacity to fully carry out the role.

Consultation as part of the reasonable accommodation process

It is clear from the above chronology that the Respondent has, in accordance with the good practice recommended by the Supreme Court in Nano Nagle, fully consulted with the Complainant. In particular, the Respondent:

(a)Took into account the Complainant’s views expressed in the initial medical report of March 2024;

(b)In May 2024, subsequently sought his views on the initial risk assessment dated 16 April 2024;

(c)Reversed its course of action upon the Complainant giving his view that the risk assessment ought to have involved him and scheduled another medical assessment and practical risk assessment;

(d)Subsequently carried out a revised medical assessment and practical risk assessment with the Complainant’s full input and, following further medical assessment, cleared him to return to work.

The purpose of consultation is to permit employees a degree of influence and participation in employer actions. It is clear that that purpose was achieved here – once it became clear from consultation that the Complainant had been excluded from the risk assessment, he raised this and was subsequently included to an even greater degree, to the point of being allowed a full return to work practical assessment in a training aircraft.

Delay

It is also clear from the case law, that the duty to reasonably accommodate an employee’s disability must take into account a failure by the employer to be proactive and timely in discharging that duty. A delay on the part of an employer in considering reasonable accommodation can in itself constitute a failure to provide reasonable accommodation.

For example, in Alistair Clews v DSG Retail (DEC-E2014-081), the complainant, employed as a salesperson since 1997, experienced deteriorating eyesight from 2008 and promptly provided his employer with a work assessment recommending an uncluttered environment. Despite receiving this assessment, the employer failed to act, and as the complainant's condition worsened, he was forced to go on sick leave in January 2010. Although the employer obtained independent medical advice by May 2010, it did not offer alternative roles until February 2011-nine months after the complainant's request to return and six months without pay. The Tribunal was particularly critical of this prolonged delay, finding it unacceptable and holding that the employer's failure to make timely enquiries and provide reasonable accommodation forced the complainant to remain out of work, thus constituting a breach of its obligations.

There were 3 periods of delay in this case. While none amount to the period complained of in the case law cited, it is significant that these delays arose not out of disregard for the employee’s position, but actually in spite of the Respondent proactively seeking to ensure that it had (i) discharged its duty to provide a safe system of work to the Complainant; (ii) complied with its regulatory obligations; and (iii) engaged fully and effectively with the Complainant and his injury.

First, there was a period of 10 week between the sign-off of the initial risk assessment on 16 April 2025 and the subsequent occupational health assessment which took place on 24 June 2025. This delay did not arise out of a lack of proactiveness on the Respondent’ part: the Respondent spent 2 weeks of this delay (23 April 2024 – 6 May 2024) engaging with the employee, seeking to understand their view of the risk assessment that had been performed and following up with occupational health to discuss a medical certificate received from the Complainant.

Moreover, from 14 May 2024, the Respondent was attempting to schedule another occupational health assessment and was informed by the third party provider (Medmark) on 20 May 2024 that the earliest available date was on 20 June 2025. This date then had to be pushed out by 4 more days to 24 June 2025 due to the Complainant being on annual leave.

Accordingly, the Respondent was for this entire period attempting either to engage and consult with the Complainant or to schedule a fresh occupational health assessment (an outcome of that consultation).

Secondly, there was the period between the 24 June 2025 and the practical risk assessment on 22 July 2025. The reason for this 4 week gap has been set out above, as the task involved making an active-duty search-and-rescue helicopter available for a training flight and ensuring there was a crew and separate trainer available to accompany the Complainant on the flight - in circumstances where helicopter use and crew availability is subject to a 24 hour crew roster and the crew may be required for service on very short notice for an emergency. As a result, careful planning was required for this practical risk assessment weeks ahead of the flight.

Finally, there was the 5 week period between the questionnaire issued to the Complainant on 14 August 2024 and the Complainant being clear to return to work on 19 September 2024 (with no loss of salary). As is clear from the correspondence exhibited, the Respondent made repeated, proactive attempts to either schedule an occupational health appointment, or seek an update from that appointment, with Medmark on 27 August, 2 September, 3 September, 6 September, 12 September and 16 September 2024.

As such, it is respectfully submitted that the Respondent did not fail to discharge its duty to reasonably accommodate the Complainant in this case – while there was oversight initially in not directly involving the Complainant on the initial risk assessment and only seeking his views on the assessment afterwards, this was remedied as quickly as possible by the Complainant, with much of the delay arising out of genuine logistical difficulties (aircraft availability) and the schedule of a third party (Medmark).

Allegation of discrimination

The burden is on the Complainant in the first instance to establish a prima facie case of discrimination (Mitchell v. Southern Health Board [2001] 12 ELR 201). As set out fully below, the Complainant has not identified a valid comparator, and therefore he has not discharged this burden.

To succeed in a claim of direct discrimination on the ground of disability, the complainant must show:

A valid comparator: The Complainant must identify a comparator who is in a truly comparable situation, meaning someone who is in materially similar circumstances except for the protected characteristic (the disability).

Less Favourable Treatment: The Complainant must show that they were treated less favourably than this comparator because of their disability.

The Complainant identified Mr. N McA as a comparator:  Mr Mc was based in the Waterford base like the Complainant and also a Winch Operator. Mr McA was on sick leave for a period of 11 months. In that time, Mr McA underwent two surgeries; attended his AME; attended OH once; and was returned to duty without any further investigation or risk assessment.

As the Labour Court held in Minister for Education and Science v A Worker EDA08, (as well as the WRC in Vuckovic v Kepak Cork Unlimited Company ADJ-00023720 and the Equality Tribunal in Burke v Boston Scientific DEC-E2010-001, as well as the authors Bolger, Bruton and Kimber in their textbook Employment Equality Law (2nd edn, Roundhall 2022) pg 386 - see pgs. 1 – 16, the key question is whether Mr. McA and the Complainant were in the same situation at the relevant time. If both were in a comparable situation and Mr. McA was allowed to return to work as a winch operator while the complainant was not, then Mr. McA could be a valid comparator.

In terms of the comparator chosen by the Complainant however, the two different outcomes were a result of the medical advice received from occupational health in respect of Mr. McA. Unlike the Complainant, the outcome of Mr. McA's occupational health assessment was that no risk assessment was recommended.

Therefore Mr. McA’s situation (and the subsequent occupational health recommendation) was materially different and incomparable from the Complainant’s situation: while Mr. McA was cleared to take up his duties as a winch operator, the Respondent was advised that the Complainant should be the subject of a further risk assessment “if there was any uncertainty” as to whether he could carry out the tasks of a winch operator while also following the OH assessment advice.

Since the complainant was not allowed to return to flight duties as a winch operator due to ongoing concerns (medical or otherwise), but Mr. McA was allowed back as a winch operator because he was medically cleared and able to perform his duties, then Mr. McA is not in a truly comparable situation and therefore he is not a valid comparator.

The Complainant’s submission states: It is respectfully submitted that, in respect of the complaint that Mr O’Hara was directly discriminated against by the Respondent on the basis of his disability, the Respondent went on to impute and associate difficulties, which the Complainant no longer had, on the Complainant in not allowing him to return to work.

Respectfully, this submission is incorrect:

• (a) First, the Respondent commenced a process to ascertain the degree to which the Complainant’s disability impacted his ability to fully perform his duties. Any employer is permitted to do this, but this particular employer had an overriding duty to do so given the safety critical and life-saving nature of its services, and the fact that its personnel perform a role which demands a very high degree of physical robustness. This was not an attempt to “impute or associate” difficulties – it was an attempt to understand the degree to which an employee with an injured shoulder was able to operate a winch attached to a moving helicopter which often has people below (a colleague and a person in need of rescuing) attached to the winch cable,
• (b) Secondly, the Complainant raised issues with that assessment with the Respondent after having been consulted on the assessment. After this, and further medical consultation, the Complainant’s wishes were adhered to and a practical assessment was scheduled, which the Complainant subsequently passed.
• (c) This is an instance therefore of an employer attempting to understand an employee’s capacity following an injury and then consulting with an employee following that assessment, not an attempt to “impute or associate difficulties”. Additionally, while the period of time in returning to work was understandably frustrating for the Complainant, it was in the main the result of logistical and scheduling difficulties, not any lack of proactiveness on the part of the Respondent.
• (d) Moreover, it is clear that all the steps the Complainant has complained of in his grievance were remedied in the course of the medical assessment stage (i.e. not being fully involved in the initial risk assessment) or in the outcome of his grievance (i.e. his sick leave being restored and marked as company time).

Submission in respect of harassment, victimisation

While the Complainant has baldly asserted harassment and victimisation in his submissions and complaint form, it is respectfully submitted that no allegations of harassment or victimisation can be made out on the facts and that these elements of the complainant are bound to fail.

It is accepted that the Complainant had a disability within the meaning of the Employment Equality Acts 1998 to 2021.

It is accepted that the Respondent had duties to not treat the Complainant unfairly as a result of that disability.

The Respondent had the responsibility to (i) assess to what extent the disability required reasonable accommodation and (ii) if so, whether it could reasonably accommodate that disability in (iii) a pro-active manner, and (iv) if so, to provide such accommodation (see Nano Nagle School v Daly [2019] IESC 63.

Moreover, the Respondent had to coordinate the above legal responsibilities under Irish equality law with its additional legal responsibilities under the EASA and IAA regimes, which are of central importance to this complaint.

The Respondent made a supplemental submission in relation to a 2021 period of sick leave to support the case that they are an employer who provides reasonable accommodation. The summary is as follows:

Complainant’s Occupational Health Report of September 2021

The Complainant has undergone a number of OH assessments during his time as an employee of the Respondent. One such assessment took place on 21 September 2021 on foot of his ongoing absence since 29 May 2021. The Complainant noted difficulty in performing certain duties of the winchman role which he occupied.

In the report, the OH assessor recommended that the Complainant’s mental wellbeing was stable and was fit for work with the requirement for certain restrictions. It was recommended that the Complainant was fit to carry out the full duties of the winch operator role effective immediately, however, he remained unfit for the winchman role due to the risk of carrying out certain tasks. The Complainant’s return to work at this juncture was subject to him being reasonably and practically accommodated in that role, and that this accommodation would be necessitated for a period of greater than 6 months/a year.

On the basis of this report, the Complainant has remained as winch operator with the Respondent’s technical crew team, and has not been rostered for winchman duties.

The Respondent respectfully submits that, in the context of the Complainant’s OH assessment of September 2021, it provided ample accommodation arguably beyond what was recommended by the OH professional at the time. At the present moment, four years have passed since that recommendation was made, surpassing the estimated recommendation of six to twelve months of accommodation, during which time the Respondent has assisted with the needs of the Complainant at work to the best of its ability. While having an employee who cannot undertake winchman and winch operative duties does place some strain on the Respondent’s operational resources, the Complainant is a valued member of the Respondent’s team and as such, during this period, no undue pressure has been applied to the Complainant in his return to work, and appropriate and suitable restrictions were put in place to accommodate the performance of the winch operator duties. It is respectfully submitted that these are not the actions of an employer in breach of its obligations to reasonably accommodate its employees.

Commitment to reasonably accommodate all employees

The Respondent has identified numerous employees that have been referred to OH for a review following their return to work, which includes members of the technical crew, engineering staff, and pilots alike. Between 2020 and 2025, the number was approximately 43 OH referrals (17 engineers; 21 Technical crew; 5 pilots) according to a review of the Respondent’s HR systems.

In each employee’s case, the Respondent has readily committed to providing the most suitable and reasonable accommodation to meet the needs of the employee in light of their specific set of circumstance.

It is submitted that the Respondent duly and consistently complies with OH advice regarding the capability and accommodations required of its employees, including the Complainant, as part of its robust return to work policy. The Respondent is an employer that accepts its duty of care to its valued employees and adheres to its obligations under Irish employment law.

Evidence was given on affirmation by the HR Director Ms Lesley Sim. 

She stated that she is HR Director for the U.K. and Ireland Operations and has a new role in Leadership Development.  She leads a team which supports the business in HR issues, such as those involved in this case, monitoring absences, return to work procedures and Occupational Health referrals.  She stated that she had no involvement in the first risk assessment.  She was of the opinion that the OH Physician was provided with information that the Company did not have, in relation to the nature of the Complainant’s medical condition.  She noted the second OH referral was arranged as the Complainant did not accept the outcome of the first OH report.  She emphasised the Company position is that employees cannot return to work until medical issues are resolved, HR involvement is to keep the communications going with employees.  She confirmed that if employees are reaching the end of the paid sick leave period, there is a responsibility to let them know and it is normal practice to offer the employee the opportunity to avail of annual leave if appropriate.  Following the outcome of the second OH report, HR worked with the Complainant to have him return to work.  There were some delays but the witness stated “we have a duty of care to employees to ensure they can safely return to work.   She outlined the discretionary nature of the payments for sick leave incurred during April to August 2024 and she refuted the Complainant’s allegation that he was ‘kept in the dark’.  He was regularly contacted by 2 HR colleagues.  She outlined the grievance process undertaken with the Complainant and confirmed the outcome.  She confirmed that the Company is in the process of reviewing the return to work policy.

Sworn evidence was given by Manager, Flight Operations Mr Aaron Hyland.

He outlined his role as Manager, Flight Operations (MFO), which is to ensure the safety of operations and to be responsible to the Aviation Authority.    He commenced with the Respondent in 2011 as Search and Rescue Co-pilot and was in Shannon for 3 years as MFO and also had roles in Ground Operations and Training.  He said that there are significant regulatory requirements laid out in law.  He had overall 20 years experience and was very familiar with the roles and duties undertaken by Winch Operators.   He outlined the rigorous role of the Winch Operator and especially if for example, a Winch Man was incapacitated.  In this particular case, the first OH report did indicate that a risk assessment should be carried out if there was any doubt whatever in the particular activities outlined.  He noted that the 2 TCMs both recommended the risk assessment and he was not aware that TCM Mr E had issues with it.  He was the lead assessor and signed off on it.  He said it would take time to arrange the second risk assessment as aircraft had to be sourced and it would depend on that and staffing and other issues.     He disagreed that the Complainant could have been assigned to other roles due to specific qualifications and new regulations.  He made the decision to take the Complainant off the course scheduled for May as he was concerned that due to the degenerative shoulder issue the Complainant had would he be able to perform radical CPR?  He disagreed that the second risk assessment was in any way unique or extreme.

Findings and Conclusions:

At the outset, it is fully acknowledged that significant safety related work is carried out by the employees of the Respondent Company in a highly regulated environment as outlined in evidence.  The findings below are based on the applicable law and the applicability of the law to the Complainant.

Section 6 (1) of the Act states:

“(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..

Section 6 (2) (g) states:

(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”).

It is accepted that the Complainant had a disability within the meaning of the Employment Equality Acts 1998 to 2021.  This is acknowledged in the Respondent’s submission.

Prima facie

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to her or her, it is for the Respondent to prove the contrary.”

Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred.  If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found that the Complainant must:

“establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a claimant must prove, on the balance of probabilities the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.    It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

The formulation of the test by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 was described by the Court in HSE North Eastern Area v Sheridan EDA0820 involving a three step process of analysis:

First, the Complainant must prove the primary facts upon which he or she relies in alleging discrimination.

Second, the Court or Tribunal (or in this case, Adjudicator) must evaluate these facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

Third, if the Complainant fails at stage 1 or 2, he or she cannot succeed.  However, if the Complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the onus shifts to the Respondent to prove, on the balance of probabilities, that there is no discrimination.

In this instant case, the comparator chosen by the Complainant was assessed by Occupational Health and returned to work fairly promptly.  He was deemed fit to return to duties provided that it was reasonably practicable from a service perspective that he would be offered a permanent restriction to Winch Operator duties on the roster.  The medical OH assessment carried out on the Complainant on 7th March 2024 made recommendations including that he continue to work as a Winch Operator and not a Winchman and made recommendations regarding manual activity and “if there is any uncertainty” a risk assessment should be done.   As outlined in the submissions and hearing, the issue of the risk assessment carried out in the absence of the Complainant and the subsequent delays in returning him to duties became the catalyst for the Complainant’s complaints and the WRC referral.  I find that the fact that the Comparator and the Complainant were both deemed by Occupational Health to be given Winch Operator duties grounds a valid comparator situation.  I find that the Complainant has met the steps 1 and 2 of the test outlined by the Labour Court in HSE North Eastern Area v Sheridan EDA0820 and the onus now shifts to the Respondent.

The substantive case

I note that on 7th March 2024 the Complainant was deemed by Occupational Health fit to return to work with some recommendations and it took some 6 months until he was given the all clear to return from the Respondent.

The first risk assessment was carried out on 9th April 2024 in the absence of the Complainant.  In fact he had no knowledge of this until 19th April 2024, after he had actually returned to duty (from 15th to 18th April 2024 and undertook a return to work interview).

There are a number of significant facts which I note as follows:

The fact that the Complainant passed a very strenuous practical carried out on 22 July 2024 and was not returned to work for some time after that.

The summary of the outcome of the grievance was that his grievance was upheld, in that he should have been involved in the first risk assessment, the length of time it took, and that he should not have been put on sick leave following the OH report of 7 March 2024.  The Complainant was out of work for 6 months and suffered enormous stress which he perceived with some justification was due to the ongoing uncertainty. 

I note that part of the grievance outcome was that the Complainant’s sick leave record was to be withdrawn from 7 March 2024 and he was not to be at a financial loss.

I note the email correspondence between the Complainant and the Technical Crew Manager in which both acknowledged the stress caused to the Complainant by the situation.  The Complainant was reviewed by OH on 7 March 2024 and was deemed fit to work in his Winch Operator role with some qualifications.  His GP certified him as fit to work on 13th March 2024.

I note the OH report of 7th March 2024 deemed the Complainant “medically fit for work” but with a number of qualifications. The OH Doctor confirmed that the Complainant told her he would be able to avoid the activities described in the restrictions.  The Doctor also recommended that a risk assessment should be done on the role of winch operator to ensure that the restrictions can be accommodated in the role.  The significant factor in the period following was that the Respondent carried out a risk assessment in the absence of the Complainant

The fact that the Company then proceeded to carry out that risk assessment without the presence of the Complainant was recognised in the grievance outcome as a mistake. 

A letter from the Company to the Complainant dated 25th April 2024 stated “due to your recent absences, unfortunately your company sick pay entitlement will be exhausted as at 16th May 2024.”   While the letter went on to allude to a number of options including the use of annual leave, it was obviously a matter of extreme concern to the Complainant, in light of the OH report of 7th March and his GP certificate of 13th March that he was advised that his pay would stop in May 2024.

During May 2024 email correspondence between the Flight Operations Manager and the Complainant indicates that while the Complainant is under the impression that he is fit to work as evidence by the March OH report, his GP report and his valid Class II medical certificate, the Company insists that he will not be returned to work, and will be placed on sick leave pending clarification from OH.

He was then taken off a medical course scheduled for 21 to 23 May 2024.  This decision was subsequently reversed.

Victimisation

The original complaint form claimed victimisation. However no particular submission was made on this element of the complaint.

Section 74 (2) provides:

(2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant, having in good faith –

(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment.)

(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment.

(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or

(d) given notice of an intention to do anything within paragraphs (a) to (c). 

I find no evidence of penalisation or victimisation for having availed of the specific provisions of this section of the Act.

Harassment

Section 14A of the Act provides:

“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,

or

(b) without prejudice to the generality of paragraph (a) –

(i) such harassment has occurred, and

(ii) either –

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.”

No specific submission was made on harassment and I note the outcome of the grievances which found no deliberate harassment of the Complainant.

Reasonable Accommodation

Section 16 of the Act provides:

(16) (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 section 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.

The Supreme Court in the case of Nano Nagle School -v- Daly [2019] IESC 63 has provided clarification regarding the nature of the obligation on employers to consult with employees when considering the provision of reasonable accommodation within the meaning of Section 16 of the Acts.  In essence, the Supreme Court in this judgement has held that while there is no statutory obligation to consult with the employee it would be wise for an employer to engage in “meaningful participation” in discharging its obligations under Section 16 of the Act. (emphasis added).

I note that on 27 June 2024 the Complainant in an email to the Director of Human Resources offered that he could go to base and carry out “some admin duties” if he could be taken off SSL.  It is indicative of the Complainant’s strong desire to be back at work and it appears no consultation took place with him regarding possible scenarios in that context.

I find that the Respondent failed to consult with the Complainant and take possible appropriate measures to allow him to participate in his employment.

I find that in their actions towards the Complainant, in conducting a risk assessment in his absence, in the lengthy delay taken to allow him to return to work, and in failing to consult him regarding possible reasonable accommodation, the Respondent has discriminated against the Complainant contrary to the provisions of Sections 6 (1) and 16 the Employment Equality Act 1998.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

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

Based on the findings and reasons above I have decided that the Respondent has discriminated against the Complainant contrary to the provisions of Sections 6 (1) and 16 of the Employment Equality Act 1998 (as amended).

In accordance with Section 82 of the Employment Equality Act 1998 (as amended), I make the following orders:

That the Respondent compensates the Complainant for the effects of discrimination in the amount of €50,000.

That the Respondent takes such action as promised in their submission in relation to instituting a review of the processes in place in relation to Return to Work procedures.

Dated:   02-06-26

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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