ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00056217

Parties:

Complaint:

Date of Adjudication Hearing:  02/04/2026

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, and Section 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.

The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation.  All participants who gave evidence were sworn in.  Both parties were offered, and availed of, the opportunity to cross-examine the evidence.

Background:

The Complainant contends that he was unfairly dismissed on ground of disability, being diabetic.

Summary of Complainant’s Case:

The Complainant made an extensive written submission contained in the complaint form he submitted which is outlined here as follows:

I have diabetes. I had a choice either to refuse to take my mediation (sic) and risk losing my eyesight or losing toes due to gangrene or take the mediation (sic) and risk an impact on cognitive function. I do not want to go blind or get gangrene, so I chose the reduction in cognitive function. Diabetes is associated with decrements in cognitive function and changes in brain structure. People with both type 1 and type 2 diabetes have been shown to have mild to moderate reductions in cognitive function as measured by neuropsychological testing compared to non diabetic people. Interestingly, diabetes has been known to have an effect on the brain for more than one hundred years. In the early twentieth century, researchers and clinicians recognized that people with diabetes frequently complained of poor memory and attention. I have seen that with the proper environmental supports around me, I can live and work to reduce the effect of this long-term illness. I believe that physical exercise can be beneficial as it allows me to relax, and it helps blood flow around the body. The most important environment is when to take my mediation and when to assess my bloods. My preference is to take my mediation every 12 hours between 11.00 and 12.00 and do a blood test after exercise before a meal as a meal will throw off a result. I have a diabetes complication where there is damage to my blood vessels and nerves, which can affect my sweat glands so I can't cool down as effectively as most people. That can lead to heat exhaustion and heat stroke, which is a medical emergency. People with diabetes get dehydrated quickly. To avoid this complication, I tend to avoid direct sunlight in the summer and wear light clothing and loose-fitting clothes to help regulate my body temperature. When there is heat, people tend to eat food with high sugar content. This sugar is converted is glucose and send to the brain as glucose. The sweat glands also need this glucose, and it is this that is used to cool a person down. As I have diabetes, I cannot eat these food and my glucose can reduce very quickly in hot weather. As the glucose has been moved away from the brain and to the sweat glands, the glucose amount in the brain becomes deleted. Worst my sweat glands are not working property so they are using more glucose than they should. With the deleted amounts of glucose now in the brain, it begins to misfire, and my concentration is badly reduced. This can lead to stress. When people with type 2 diabetes are under stress, they generally experience an increase Trusted Source in their blood glucose levels. This means that they can experience either an increase or a decrease in their blood glucose levels. How can a person determine if stress is affecting your glucose levels? A person can determine if this is happening to themselves by capturing their stress and glucose levels. If they notice that their glucose is high, their stress is likely negatively affecting their blood sugar. The management gave me a three monthly and a six-monthly report showing all my cognitive dysfunctions, and I was dismissed because of these dysfunctions. There was no mention of diabetes anywhere on any of the two reports. I want to make this clear. I made it clearly known that I had this long-term illness to everybody, but nobody came back to me and asked did I needed any help. There is no place that I could go to take my mediation. As I am taking blood test, it is not a clever idea to take it around my work, so I did not want my blood appeared on people documentation and there is the issue of hygiene. Again, there was nowhere to take these test on myblood in the building. Another issue was the glass roof. I have said earlier that my condition leads to overheating. A roof made of glass is not a good place to put a diabetic under. The first workstation, I had some shelter from the sun, but I was moved to a more central position on the work area, and this exposed me to more time in the sun and this had a more devastating effect and my concentration and later on my personal health. I immediately asked the manager for a move but was refused. With the increase amount of sunlight, this was going to have an increasing negative effect on me. I like to mention my education now so that an idea of my cognitive abilities when I can control my diabetes can be established. I hold a Bachelor of Science in Applied Electronics. This was done through WIT which is now called SETU. This is a level eight course with an exceedingly high failure rate. I pass this course. I completed a Level 8 Certificate (SPA) in Pharmaceutical and Medical Device Manufacturing done with Inno pharma labs and Institute of Technology Tallaght. I pass this course. I have completed several night courses done through Waterford and Wexford Education and Training Board (WWETB) and online course done through eCollege. I have passed all of these courses except for the eCollege CompTia A+ Certification which I am currently studying at the moment. I have never let my long-term illness stop me from achieving any goal that I put in front of me. It is shocking to me that somebody else would use my diabetes and/or its cognitive effects on me by collecting information on my medical health and using this medical information against me so that they can dismiss me. Is the collection of medical information on an individual illegal? I am used in receiving a high quality standard of education from all institutions that I have taken part in but in DSP this is lacking. The person in charge is so busy that she cannot be everywhere, and this is not her fault. It is the way that the Department is structured. Anywhere I have been employed the person doing the training does that and nothing else. There was always a training day during the week usually a Monday, and you know that on that day you turn up for training and that is all you do. This is how Revenue does it. In DSP I would be asked to turn up in the training and leave halfway through to do hatch work and thus miss half the class and then I am expected to do the new work without doing any practice examples like what most employment would use. These examples would have an 80% pass completion which If you failed you would redo until you passed. This is a more positive way of processing information through any course. Reading a PowerPoint presentation is not a way I like to learn as reading allows for the smallest percentage of information to be absorbed by the brain and with my decrease cognitive function during parts of the day particularly between 11.00 and 13.00 this would be a problem. I uses a touchscreen laptop at home as I find the tactile feel beneficial to my diabetes and my concentration and interactive means of training allows a person to take in information a lot easier and quickly. Now let talk about how diabetes can affect cognitive function. The symptoms associated with diabetes can include any of the following

• Fatigue
• Irritability
• Dizziness
• Confusion As it gets worse, the following will appear
• Memory loss
• Difficulty problem solving
• Trouble finding the right words
• Inability to process information and concentration
• Feeling as if you’re moving in slow motion
• Nervousness
• Anxiety
• Coordination difficulties
• Decision making difficulties
• Personality and Behavioural changes
• Hunger and thirst issues These symptoms can lead to a person experiencing a diabetic brain fog. Here the person blood sugars are too low. The person is trying to control their blood, but the blood sugars are going from low to high and the brain cannot reach quick enough. This causes stress. During periods of stress, adrenaline is released to help the body recover from an episode of low blood sugar. This may cause
• Heightened awareness
• Light-headedness
• Vision changes
• Restlessness
• Nervous jittery sensation Is diabetes a disability? If you have type 1 diabetes, type 2 diabetes and need to take insulin or other medication for your diabetes, it's generally seen as a disability under the Equality Act 2010. Diabetes is legally viewed as a disability, because it is a disease that affects a “major life activity.” People with diabetes also have the right to monitor their blood glucose and administer insulin or medication accordingly. Working in a public environment, a need to have a relatively private space in which to monitor blood glucose and administer medication is a must for a diabetic. Because of this lack of facility, I have to take my medication early at home and this means that I have overdose myself early in the morning and this creates a low blood sugar level early in the morning and which leads to low concentration and headaches and with the overheating issue created stress which in turn led to the Brain Fog. The three monthly/six monthly work reports which was used to dismiss me clearly show medical symptoms associated with my long-term illness. It shows a procession of symptoms would get worse with time. I asked for to be moved away from the sun to prevent me from overheating This was refused. I had no private space to take my mediation (sic) or monitor my blood glucose levels. I have little means to cool down where I was working as there is no ventilation in the building. When I asked for holidays to give me a chance to recover, it was refused. What annoys me the most is a refusal by management for me to attend a doctor appointment which was critical for my illness. Getting the sack due to discrimination because I am a diabetic and by using the symptoms relating to this illness to dismiss me was the worse day of my life. The saddest thing is that I found the people working in the DSP are best in the world doing work that is difficult and stressful. People do not know the level of work that needs to be done. I have made many friends in the front office, and I do not want to fall out with them over this issue.

Complainant’s evidence

The Complainant gave evidence on affirmation. He outlined the situation and the condition of diabetes in considerable detail.  In particular, he stated that he was not given facilities to administer injections in a safe way on the work premises.  On cross examination by counsel for the Respondent he stated that he required a special safe disposal of implements for the disposal of syringes and he agreed that he had not requested such a facility.  He confirmed that he had not contacted the Respondent’s Disability Liaison Officer.  He confirmed that his probation was extended and there were some errors in his performance.  He stated that the consequences of lack of medication were his concentration was lowered.  He emphasised that he was an Electronics Engineer by profession and he stated “I lost my job because I was a diabetic”.

Summary of Respondent’s Case:

By complaint received on 02/01/2025, the Complainant lodged a complaint under section 77 of the Employment Equality Act alleging that he had been discriminated against on grounds of his disability. He states that the most recent date of discrimination was 12/07/2024. In a detailed complaint form, the Complainant sets out the extensive medical symptoms associated with diabetes. The Respondent has not been provided with any medical evidence that the Complainant suffers from diabetes. While it is accepted that the Complainant stated that he suffered from diabetes, the Complainant is on full proof that the wide-ranging symptoms, as described by him in detail were symptoms that he was suffering at the relevant time and impacted his work.

The Complainant was employed as a Clerical Officer with the Respondent. His employment commenced on 11/12/2023 and his employment ended on 20/07/24, as he did not complete his probation satisfactorily. From the outset the Complainant’s level of error in his work was high. This was brought to his attention; he was provided with additional training and support, but his work remained unsatisfactory. At no stage during his employment did the Complainant either provide the Respondent with medical evidence that he required any reasonable accommodation or ask for any accommodations for his disability. Furthermore, at no stage did he contact the Disability Liaison Officer or raise the fact that his disability was impacting his work.

The Complainant’s employment

The Complainant was employed as a Clerical Officer in Waterford Intreo Centre. His contract of employment states clearly that the Complaint must pass a probation period.

Each new entrant commencing employment in Waterford Intreo Centre takes part in an induction programme where they are given a brief overview of the department outlining the variety of work that is completed, the management structure and the resources available to staff, if required, such as the Disability Liaison Officer (DLO) and the Civil Service Employee Assistance Service (CSEAS). A detailed document entitled “Welcome to Department of Social Protection” is provided to each new entrant.

The information includes information about the availability of a Restroom which is described as follows:

“a restroom is available on the first floor opposite the canteen for staff who may feel unwell, for pregnant, post-natal and breastfeeding employees and for any staff member who may need to use it for medical purposes and/or to store relevant medication, e.g. Insulin pen, expressed milk etc. It is also the venue used by the CSEAS for meeting with staff members, to ensure a safe place is available for those who wish to engage with the Employee Assistance Officer”.

In addition, details regarding Equality, Diversity, Inclusion and Disability supports are set out, including the email addresses for both the EDI Team and the Disability Liaison Officer.

All new starters are required to complete a welcome questionnaire, as no personal details are received from the Public Appointments Service and are given a tour of the building to familiarise themselves with the environment, highlighting facilities available, such as showers, the rest room and the canteen. One such facility, as detailed above, is a medical fridge designed for insulin and breast milk. All staff are verbally informed that this fridge is not to be used for any other purpose. All new staff are also required to complete online induction, which takes two to three days, after which they begin their designated area process training with the Intreo Centre Training Officer. The Complainant completed the full induction programme.

During the induction, in completing his medical questionnaire, the Complainant wrote his medical condition “diabetes” in the questionnaire under the medical history, which was noted. The question was as follows:

- 4 medical - do you wish to advise the department as your employer of any medical condition that you have that may require special care or attention by local management?

Response: yes.

If yes, please give details.

Response: diabetes.

Apart from writing the word diabetes on the form. The Complainant gave no further details or sought any further reasonable accommodations regarding his condition. The Complainant stated to his Line Manager, Cian Morgan, HEO that he had diabetes in a casual conversation in February 2024, Mr Morgan asked if there was anything that he as his manager, could do for him. He replied in the negative and added that he just wanted to make Mr Morgan aware of his condition.

For the avoidance of doubt, the Complainant did not inform his Manager that he needed to take medication at any stage or required any other measure of support. He did inform his EO trainer that he took tablets in a casual conversation but never indicated that this was an issue. The support plan meetings, which are set out in more detail below, allowed and encouraged a communication flow between the Complainant and Mr Morgan on any supports he required. He did not inform his manager or anyone, at any stage, that he personally needed a private space to administer his medication. There would have been no difficulty in providing one, if requested.

There were difficulties with the Complainant’s work from the outset, and he was made aware that there were difficulties with his probation, which, if he was unable to demonstrate progress in the role, would have ramifications for his contract. In addition to his induction training, the Complainant attended training as follows:- 

18/02/2024 newly awarded claim tasks.

10/01/2024 signing process.

29/01/2024 three day or less overpayments.

15/04/2024 holiday tasks.

30/04/2024 Ben-Ex tasks.

The Complainant, along with other staff members, attended these training sessions. In every session detailed notes and tip sheets were provided. The Complainant required repeat training regularly -almost on a daily basis. Queries on basic tasks were raised by the Complainant to his Manager and other staff regularly throughout each day, to the point where it made it difficult for his Manager and other staff to complete their own work.

A three-month probation meeting was held on 14th March 2024. In attendance were the Complainant, Mr Morgan and Frances Dunne (Area Manager). It was noted that the Complainant was not performing his work accurately and effectively, the work was not of good quality, it was not well executed, and he was not meeting deadlines. Overall, he was not demonstrating the required ability to perform all the duties of the role and received an unsatisfactory rating.

The Complainant was advised of the support plan being implemented and was provided with a copy of that plan signed 14/03/2024 and a summary of the review meeting.

The detailed support plan set out what was required of the Complainant and stated clearly that “where a satisfactory level of service is not maintained, the probationary contract may be terminated with statutory notice and in this event, the matter will be referred to the HR division, DSP”. The duration of the plan was 12 weeks with fortnightly reviews and the plan noted, in relation to accuracy in work, the following: -

• Higher level of accuracy required (on review from 14/02/2024 to 13/03/2024 of 51 tasks, 30 needed corrections/interventions).

The plan noted that the Complainant’s current error rate was at 60% from 14/02/2024 to 13/03/2024 and that a higher accuracy was more important than volume of tasks completed. The resources and supports being provided were set out in detail and both the Complainant and his Manager signed this document on 14/03/2024.

The Complainant had a meeting with his manager on a regular basis and following each meeting with the Complainant, Mr Morgan sent the Complainant an email summarising what had transpired at the meeting. (A copy of the emails dated 11/04/2024, 03/05/2024, 21/05/2024, 28/05/2024, 31/05/2024, 04/06/2024 and 07/06/2024 were included with the submission).

What emerges from a review of these emails is that there were ongoing difficulties with the Complainant’s performance. There continued to be a high number of errors in the Complainant’s work, and he was advised that he should not need to double check every task with another member of staff before he processed it. He was advised that he should be able to complete the majority of debt tasks assigned to him without seeking guidance. He was consistently told to refer to his training materials and notes for all tasks. It was continuously stressed that he should have the ability to process debt tasks without checking with other members of staff before processing, unless it was a complex debt task. Throughout the meetings, the Complainant was asked if there was anything that Mr Morgan could do for him or anything that he would like to raise. The Complainant made no mention of his diabetes affecting his ability to carry out his role.

At the review meeting on the 07/06/2024, Mr Morgan noted that the Complainant had not forwarded him a list of tasks completed, as per his request in emails sent on Friday 31 May, Tuesday 4 June and Thursday 6 June 2024. He noted that as the Complainant did not do that, he could not comment on the quality of the tasks that had been processed by the Complainant that week. He reiterated that he had asked the Complainant to send him a list every day and asked him to please send him a daily list the following week.

A probation review meeting was held at 6 months. At the six-month assessment, (included in submission) it was noted that again the Complainant was not working accurately and effectively, the work was not of good quality, it was not well executed and he was not meeting deadlines. He was not demonstrating the required ability to perform all the duties of the role.

By letter dated 21/06/2024 the Complainant was informed by the Assistant Principal HR Division, that he was not going to be confirmed in post and that his employment would be terminated, in accordance with Section 7 of the Regulation Act 1956 and Section 5A of the Civil Service Regulation (amendment) Act 2005 and subject to statutory notice. He was informed of his right to appeal that decision and that he should contact HR Division in respect of the appeal.

Synopsis of the tasks the Complainant had processed from 19/03/2024 to 28/05/2024 showed an error rate of between 31% to 73%. Synopsis of the task processed from 29/05/2024 to 13/06/2024 showed an error rate of between 45% and 100%. As a result, the Complainant was awarded an unsatisfactory rating for his probation.

The Complainant engaged in email correspondence with HR in which he asked when he would be finishing up. He also confirmed that he was not appealing as follows: “thank you for getting in contact with me. I do not think an appeal would be of use. I am an electronic engineer by trade. Numbers are my thing. I cannot appeal anything. I cannot understand where their numbers came from. I am shocked at what was presented to me. I been asking myself did I do anything right? I worked as hard as I can but it looks as if to no avail. I consider myself well educated with two level eight degrees and therefore I should be able to do the work, but I cannot understand where the problems are and in order to make an appeal, I feel that direction must be provided by me and this direction is lacking”.

It is of note that there is no mention of the Complainant’s disability.

In relation to the allegation that the Complainant was refused annual leave, that is denied and a copy of his leave requests which were approved by his manager are included in the submission appendices.

The Complainant never sought a change of workstation, nor did he ever inform management at any point that the location of his workstation was allegedly affecting his performance. The Complainant was not denied a move of workstation as he never asked to be moved.

THE LAW

Section 6(1) of the Equality Act 2004 provides that:

“Discrimination shall be taken to occur where 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")”

Section 6(2) provides that as between any two persons, the discriminatory grounds include:

“that one is a person with a disability and the other either is not or is a person with a different disability..).”

 Section 16 (3) (a) provides:

“for the purposes of this Act, a person who has a disability shall not be regarded as other than fully competent to undertake, and fully capable of undertaking, any duties if, with the assistance of special treatment or facilities, such person would be fully competent to undertake, and be fully capable of undertaking those duties.

(b) An employer shall do all that is reasonable to accommodate the needs of a person who has a disability by providing special treatment or facilities to which paragraph (a) relates. (c ) A refusal or failure to provide for special treatment or facilities to which paragraph (a) relates shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the employer.

It is submitted that in the first instance a Complainant must inform an employer of his disability and if reasonable accommodations are sought then they must provide medical detail of its extent together with all relevant surrounding circumstances. No medical evidence has ever been provided to the Respondent to support a need for reasonable accommodation and the Complainant has not identified a comparator who he says was treated more favourably than him.

BURDEN OF PROOF

It has been the well-established practice of the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has or would be treated, on the basis of the discriminatory ground cited. It is only when he has discharged this burden that the burden shifts to the respondent to rebut the inference of discrimination raised. In Concern v Anthony Martin (ADE/05/15) the Labour Court has stated in relation to the Burden of Proof in a case concerning gender and age discrimination.

"The allocation of the probative burden in discrimination cases is now determined by Section 85A of the Employment Equality Acts 1998 and 2004. This section gives legislative effect in domestic law to Directive 97/80 on the burden of proof in cases of gender discrimination and to Article 10 of Directive 2000/78/EC Establishing a General Framework for Equal Treatment in Employment and Education.

This Section provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination may be presumed, it is for the Respondent to prove the contrary."

The Labour Court has ruled that the aim of the Directive was to “formalise in legislation “the case law of the Court of Justice rather “than to introduce a new procedural requirement” (Southern Health Board v Mitchell [2001] E.L.R. 201). The Court went on to consider the extent of the evidential burden, which a claimant must discharge before a prima facie case of discrimination, could be made out. The onus is on the Complainant to:

“prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination. It is only if these primary facts are ….. regarded 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”

It is submitted that the Complainant has not provided primary facts from which discrimination can be inferred. There were difficulties with the Complainant’s performance from the outset which are well documented. At no time during the support meetings or probation review meetings did the Complainant allege that his poor work was because of a disability.

The Complainant did not seek reasonable accommodation and has not provided any evidence from which discrimination can be inferred.

Evidence on affirmation was given by Intreo Centre Manager Mr Cian Morgan

Mr Morgan confirmed that he is the Manager of the centre in which the Complainant worked.  There were 5 E.O.s and 16 C.O.s on the team.  He confirmed that new staff were provided with induction training and documentation which showed the availability of the restroom mentioned in the Respondent’s submission.  There were others in the building who had diabetes and availed of the facility.  The Complainant did mention that he had diabetes and when Mr Morgan asked him if there was anything he needed to do to support him, his answer was ‘no’.  The reason his probation was extended and that he was not given a permanent position was purely down to performance.  A 60% rate of error is a high rate and incorrect information inputted could have very serious problems, leading to having to claw back money from people using the service for example.

Findings and Conclusions:

Section 6 (1) of the Employment Equality 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”).

While no medical evidence was provided to certify his condition, I accept the Complainant was diabetic and I find that he did have a disability for the purposes of the Act.

Prima facie

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.   If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.   In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

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 Melbury Developments v Arturs Valpeters, EDA0917, the Labour Court stated:

“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…

” Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” (emphasis added)

In this instant case, I note the Complainant responded ‘no’ to any offer of assistance in relation to his diabetic condition.  I note the facilities provided by the Respondent for private space for employees. I note the compelling evidence of the Centre Manager regarding the Complainant’s performance and the impact errors can have on the service.  I note no mention of a disability in the Complainant’s communication that he was not appealing the decision to terminate his employment.  The Complainant has not provided any evidence or example of a person without a disability or a person with a different disability with which to compare his situation.  I note the evidence of the Centre Manager that there were some other persons with diabetes in the particular workplace.  In all of the circumstances, I find that the Complainant has not met any of the 3-step process cited above.  He has not established a prima facie case and his complaint is not well founded.

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 this complaint is not well founded.

Dated:   03-06-26

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: