EDA2620

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00051601 (CA - 00063319-001)

BACKGROUND:

The Employer appealed the decision of the WRC Adjudication Officer under Section 83(1), Employment Equality Acts, 1998 to 2015 on 26 November 2024. The Worker subsequently counter-appealed the decision on the 8 December 2024. A Labour Court hearing took place on 31 March 2026.

The following is the Determination of the Court.

DETERMINATION:

1.Background

This matter came before the Court by way of an appeal and counter-appeal from a decision of an Adjudication Officer (ADJ-00051601, dated 29 October 2024) under the Employment Equality Act 1998 (‘the Act’). An appeal on behalf of Omniplex Cork Limited (‘the Respondent’) was received in the Court on 26 November 2024. A counter-appeal on behalf of Mr Dylan O’Riordan (‘the Complainant’) was received on 8 December 2024. At first instance, the Adjudication Officer upheld the complaint under the Act and awarded the Complainant compensation of €12,000.00. The Court heard the appeal in Waterford on 31 March 2026. The Complainant gave sworn evidence. Two witnesses appeared on behalf of the Respondent: Mr Ray Fitzpatrick and Ms Grace Sinnott.

2.Factual Matrix

The Complainant is autistic and also suffers with mental health issues. Both conditions are inter-related, he told the Court: when his mental health declines, his autism is exacerbated and he has a tendency to go into autistic shutdown. The Complainant informed the Respondent of his disabilities during the recruitment/on-boarding process and also separately advised the General Manager of his circumstances.

The Complainant commenced in employment with the Respondent in March 2022 as a part-time Supervisor. Within six months he was promoted to Head Supervisor, also on a part-time basis. He took up the full-time role of Duty Manager in March 2023. His salary was €29,000.00 per annum.

The Complainant began to experience a decline in his well-being in or about late summer 2022 due to the variable nature of the shifts he was required to work. He approached the General Manager and verbally requested reasonable accommodation at this time. He repeated those requests again in 2023 having disclosed to the General Manager his mental health issues and his concern that he was approaching autistic shutdown. His requests for reasonable accommodation were not facilitated but the Respondent did offer him access to counselling via its Employee Assistance Programme. The Complainant did not avail himself of this as he already had a long-standing therapist and felt that meeting a second counsellor could be counterproductive.

An incident occurred at the end of the Complainant’s shift on 24 October 2023. The Complainant was rostered to work until 5.30 pm that day and the cinema opened at 4.45 pm. At 5.20 pm the Complainant became aware that there was a problem with the projector. He contacted the General Manager (who was working at another site that day) and the IT Manager. He informed them that he was under particular time pressure that evening. He then left the cinema at 5.35 pm before the issue with the projector had been resolved. He received an email shortly after that to his personal email address from the General Manager expressing concern about his well-being, advising him to attend his GP and enquiring if the Respondent could put any additional supports in place for him. The Complainant attended for work as scheduled on 25 October 2023. He sent an email to Human Resources on 28 October 2023 to advise that he required time off as his health was continuing to deteriorate. He sent a further email to Human Resources, and cc’d both the Human Resources Manager and the Area Manager, on 30 October 2023. In or around that time, the Complainant commenced a period of certified sick leave. He advised the Respondent that while unable to attend for work, he was sufficiently well enough to engage with management regarding his need for reasonable accommodation.

The Complainant attended an in-person meeting with the Human Resources Manager on 17 November 2023. He was accompanied at the meeting by his wife. The General Manager, Ms Sinnott, was present at the meeting as a note-taker. This meeting was called to review the Complainant’s requests for reasonable accommodation and to discuss the correspondence that had been exchanged to date between the parties in connection with that request. The Complainant was provided with a scanned copy of the notes taken by Ms Sinnott about two weeks later. He had certain concerns about the notes which he flagged with the Respondent.

The Complainant attended at an occupational health consultation at the Respondent’s request on 29 January 2024. Medmark thereafter provided a follow up report in which it advised that the Complainant was not yet fit to return to work but was fit to engage in relation to the various elements of reasonable accommodation proposed in the report. On 13 February 2024, the Complainant met, along with his wife, with Mr Fitzpatrick, the Human Resources Manager to discuss the reasonable accommodations that had been recommended by Medmark. No decisions were made at the meeting itself. Human Resources followed up by email in mid-March 2024 with two proposed roster arrangements neither of which fully accommodated the Complainant’s requirements. The Complainant had a second consultation with occupational health that month following which Medmark reissued its original report to the Respondent along with additional observations. The Respondent made a third proposal to the Complainant regarding a roster arrangement it believed could accommodate his requirements but advised that it would be subject to review every two to four weeks. The uncertainty he perceived with this proposed roster made it unacceptable to the Complainant. At that point he ceased his engagement with the Respondent and furnished forms ES1 and ES2 to Human Resources on 1 April 2024. The completed Form ES2 was returned to the Complainant on 28 April 2024. He resigned his employment with the Respondent in June 2024 having submitted his originating complaint form to the Workplace Relations Commission on 7 May 2024.

3.The Complainant’s Evidence

The Complainant told the Court that he was regularly required to act up as manager when the General Manager was not on site. He was required to ensure that staff received their rostered breaks, that the restroom facilities were up to standard, manage stock control and reconcile tills at the end of his shift. Following his promotion to Duty Manager, he was trained by the General Manager on how to prepare rosters. He understood that the Respondent routinely prepared staff rosters based on the expected level of business on any given day: this varied depending on the day of the week, the time of the year, whether schools were off and what movies were current. He also understood that the Respondent took account of individual employees’ availability and personal circumstances when rostering them. For example, the Respondent employed a number of full-time students who had limited availability and also employed part-time staff who had part-time employment elsewhere also.

The Complainant’s evidence was that he had informed the Respondent of his disability during the onboarding process following his initial hiring and that he had spoken separately to the General Manager about it. He told the Court that it hadn’t been an issue for the first number of months of his employment and he did not seek reasonable accommodation at that time as he felt he didn’t need it. He said, however, that after about six months with the Respondent he began to struggle as a consequence of the varied shifts he was working. That prompted him, he said, to request a more consistent roster to include two consecutive days off each week and not to be put on a late closing shift. The General Manager, according to the Complainant’s evidence, informed him that his request would not be approved by Head Office. The Complainant said he brought his request verbally on at least three further occasions to the General Manager during winter 2022-2023 having disclosed to her that he was suffering depression, self-harming, having suicidal ideations and approaching autistic shutdown.

According to the Complainant, the General Manager told him a number of times that she did not regard autism as a disability and instead saw it as a ‘superpower’. The Complainant gave detailed evidence in relation to the issue with the projector close to the end of his shift on 24 October 2023. He said that he received an email to his personal email address within an hour of his shift finishing from the General Manager expressing concerns about his well-being and advising him to attend his GP. The GM also asked, he said, if any supports could be put in place for him and directed him once more to the EAP Programme. The Complainant said that he replied with a very lengthy email (which was opened to the Court) the following day, 25 October 2023. In that email, he wrote inter alia:

“I have on a number of occasions brought my own concerns about my mental health to you stating that the hours, the workload and the pay were taking a toll as I felt I was not having the opportunity to rest and recover and (sic) were causing significant stress. I had mentioned only getting one day off at a time and working multiple closing shifts (up to 6) in a row. I had also brought it to your attention, and that of Ray Fitzgerald, that the wage was a serious point of stress as I was earning the same as a delivery driver 2 years ago so the increased workload, hours, inconsistency and responsibility during a time of serious inflation and a cost of living crisis had made working with Omniplex a rather difficult choice. Both you and Ray have been informed that I am looking for alternative work because of this.

In the past I have made requests for reasonable accommodations for my disability which have not been actioned and the result is my deteriorating (mental and physical) health. At no point has the company made any suggestions as to how it can support me as a disabled employee or even asked me what supports I need.

I had asked about not being placed exclusively on closes, having two days off together and having a more consistent schedule to help accommodate with my issues and was told this was not feasible as the roster was done as per the needs of the business and that having a consistent schedule long term was not feasible. While I appreciate that I have been allowed to use my loops (noise reducing earplugs) at work to help with overstimulation, these have not been sufficient to completely mitigate this issue. They also do little to help with other issues such as when customers are berating me for upholding company policy.”

The Complainant said that the General Manager did not reply to his email. He then went on to tell the Court that he arrived at work at for 4.00 pm the same day and received a note asking him to telephone Ms Sinnott, which he did. He said that they only talked about operational issues and there was no discussion about his email or its contents.

The Complainant next turned to an email he sent to Human Resources on 28 October advising that he needed to take time off as his situation was deteriorating. He said that he sent a follow-up email on 30 October in which he cc’d the HR Manager and the Area Manager. In this correspondence, the Complainant said that he outlined again how he felt that his requests for reasonable accommodation had gone unfulfilled notwithstanding his communications to the General Manager about his deteriorating mental health and suicidal ideations. He also said that he felt uncomfortable about continuing to raise issues with the General Manager as he believed he was being discriminated against for having a disability which had flared up because of a lack of support from management and the company as a whole. He advised he would be unable to attend for his scheduled shifts until he had consulted with his GP after the public holiday weekend. The Complainant said that he was signed off by his GP until 26 November 2023 and had advised the General Manager of this by email dated 31 October 2023.

The Complainant’s evidence next moved to his correspondence of 9 November 2023 to Mr Ray Fitzpatrick and Ms Therese Sheehan in which he stated that he was uncomfortable about returning to work until an agreeable resolution to his issues had been reached. Mr Fitzpatrick, he said, followed up by inviting him to a meeting on-site to take place on 17 November 2023. The Complainant attended the meeting, accompanied by his wife. Mr Fitzpatrick and Ms Sinnott also attended. According to the Complainant, the Mr Fitzpatrick read through the email correspondence exchanged to date and offered an explanation for the Respondent’s position. Ms Sinnott, he said, made handwritten notes on a copy of the printed email correspondence and these were scanned to him some two weeks later. The Complainant said that his certified sick leave was thereafter extended until January 2024 when he was requested by the Respondent to attend an occupational health meeting, which he did. He said that the report issued by Medmark advised that he was fit to engage with the Respondent but not to return to work.

The Medmark report dated 29 January 2024 was opened to the Court. It is appropriate to quote from it at this point:

“Mr O’Riordan has informed me that he plans to return to work once he feels well enough. I recommend that Mr O’Riordan engages with his employers to discuss his work-related concerns and possible workplace accommodations and in my opinion, he is fit to engage with his employer in this way at present.

As an example, I believe it may help Mr O’Riordan if he could be rostered to work set working hours rather than variable shift patterns and also if he could work earlier rather than later shifts, as he finds working later can disrupt his sleep patterns, which can in turn negatively impact his mental health and his ability to regulate his emotions. Mr O’Riordan may also benefit from regular structured short breaks from work and by being accommodated with access to a quiet space or sensory room and consideration given to the use of noise cancelling headphones where practical to use these.

Consideration should also be given to notify Mr O’Riordan of any changes in routines at work, as well as an opportunity to practice new routines and allow him flexibility to develop his own way of organising his workspace and doing a task, where possible.

It may be helpful to consider a formal workplace needs assessment with a suitable qualified assessor, who may be able to give advice about additional accommodations specific to Mr O’Riordan’s skills, workplace and role. As I Am are an Irish autism charity and may be able to assist Mr O’Riordan and his employer in this regard.”

The Complainant’s evidence moved to a meeting that took place with Mr Fitzpatrick on 13 February 2024 during which Mr Fitzpatrick read through the Medmark report and discussed the different supports that had been identified therein. Although the meeting note refers to the meeting of 13 February as a ‘Review Meeting’, the handwritten agenda includes as an item, ‘Update on grievance raised’. Asked about this, the Complainant said that he had understood at all times that the meeting that had taken place during the previous November had been for the purpose of discussing his well-being and his need for workplace supports but that it now appeared that Mr Fitzpatrick was retrospectively recategorizing that meeting as a grievance meeting. In fact, according to the Complainant, Mr Fitzpatrick concluded the meeting on 13 February by saying that he would proceed to complete his report into the Complainant’s grievance.

The Complainant said that his certified sick leave was again extended by his GP and that there followed a series of email exchanges with Mr Fitzpatick in February and January proposing a number of possible rosters to the Complainant. This culminated in an email from Mr Fitpatrick dated 13 March 2024 wherein the Complainant was asked to consider the following proposal:

“1. Friday & Monday – late shifts. Tuesday – early shift as needed. Wednesday & Thursday – days off. Saturday & Sunday mix of early, mid & late shifts. Weekend shifts could be structured to account for such things as avoiding early opening after a late and possibly putting an agreed rotation in place repeating the same shifts over 2/4 weeks to give some predictability to shifts. Allowing for change maybe at peak times or covering leave/absence

2. If splitting days off is an option – Monday & Wednesday – days off. This would remove issue of early opening after a late shift. Tuesday – Early. Thursday & Friday – late shifts. Saturday and Sunday as per above.”

The Complainant told the Court that he felt that the above suggestions had not been made in good faith and that he began to feel very frustrated with the Respondent by this stage. He told the Court that he could not accept the first option even though it provided him with two consecutive days off because it was liable to change every two to four weeks. He added that he had never insisted on having any particular days off – any 2 consecutive days would have worked for him, he said.

The Complainant attended for a second occupational assessment at the Respondent’s request on 14 March 2024. The ensuing report from Medmark advised that it should be read in conjunction with the earlier report dated 29 January 2024. It made the following recommendations:

“I recommend that engagement should continue between Mr O’Riordan and his employers to identify if reasonable accommodations can be made to facilitate his return to work.

It is my opinion that Mr O’Riordan is fit at present to engage with his employer in this way.

It is my opinion that he is not yet fit to return to work but I would hope that if he can engage appropriately with his employers that he would be able then to plan a return to work and I would anticipate that a lengthy rehabilitation period would not be required.”

The Complainant told the Court that by this time he had stopped engaging with the Respondent as he felt he was making no progress. He said that he had the impression that Mr Fitzpatrick was beginning to get frustrated with him. He submitted Form ES1 to the Respondent on 1 April 2024 and received a completed ES2 on 28 April 2024. The Complainant told the Court that he resigned his employment in early June 2024 having submitted his complaint form under the Act to the Workplace Relations Commission on 7 May 2024.

Under cross-examination, the Complainant accepted that there had been a level of engagement between the parties in the course of which the Respondent had presented a number of options to him. The Complainant re-iterated that he had never sought to have specific days included in his request for 2 consecutive days off per week. He said he also believed that the first option Mr Fitzpatrick had suggested was in breach of the Organisation of Working Time Act. The Complainant also stated that in his view a proposed schedule which was liable to be reviewed every two to four weeks did not provide the level of consistency that he needed but that he would not have had a problem with an arrangement to review his schedule every 6 to 8 weeks. He also agreed that Mr Fitzpatrick had made a third proposal to him in an email but that the overall context of the email in question raised a number of concerns for him.

It was put to the Complainant that that the Respondent had made certain accommodations for him by providing him with a quiet space; building in short, structured breaks to his routine and giving him an earphone loop. The Complainant agreed the foregoing had been provided to him but stressed that he had been instrumental in achieving those accommodations.

4.Evidence of Mr Ray Fizpatrick

The witness outlined his experience working in Human Resources with the Respondent. He said that he had been made aware of the incident with the projector that occurred towards the end of the Complainant’s shift on 24 October 2023. He told the Court that it was normal practice for a Duty Manager to resolve such issues before leaving the workplace and that hadn’t happened in the Complainant’s case. The witness gave evidence in relation to meeting the Complainant on 17 November 2023. He agreed that this was intended to be a welfare meeting and also a meeting to discuss the projector issue. He said that at the meeting he had discussed the email correspondence that had taken place to date but that it became apparent to him in the course of the meeting that there were a number of other issues at play including the Complainant’s well-being, mental health and his ongoing grievance. He said that the Complainant presented him with a long list of issues in the form of a grievance. According to the witness, the Complainant was quite focused on his request for reasonable accommodation and that he told the Complainant that the detail of his request would have to be reviewed by the Respondent. In the meantime, he said, the Complainant agreed to submit a medical cert to cover his absence and to attend occupational health. According to the witness, there was a waiting period before an appointment could be given to the Complainant on 29 January 2024. The witness told the Court that he met with the Complainant in February to discuss the Medmark report and that at the meeting he read through the report’s recommendations and discussed their practicality. He said that he asked the Complainant to identify what his ideal outcome would be. He said that the Complainant rejected both roster options that he (the witness) subsequently proposed and had suggested that the witness had made them in bad faith. The witness said that he proposed a third option which included any combination of two consecutive days off per week (Sundays not guaranteed) in a 2- or 4-week roster, to be reviewed every 6 to 8 weeks.

The witness then addressed the nature of the Deputy Manager position in his evidence. He said a Deputy Manager is responsible for the day-to-day operations of the cinema. He said the KPIs associated with the role had been clearly outlined to the Complainant when he took up the role and the role was a significant step up from that of part-time Supervisor. According to the witness, the Complainant did not outline any request for additional accommodations when he interviewed for the Deputy Manager role. He emphasised that the Complainant had been an excellent employee.

Under cross-examination, the witness was asked to explain how what was intended to be a welfare meeting in November in 2023 retrospectively morphed into a grievance meeting. He replied that the grievance emerged at the meeting from the long list of issues presented there by the Complainant. The witness was asked about there being an obvious conflict of interest arising from the participation of Ms Sinnott in a meeting at which the Complainant’s concerns about her interactions with him came to be in issue. The witness replied that he believed that the General Manager was the best person to address the rostering issues that the Complainant had raised in his email of 28 October 2023. The witness accepted that although he had spoken to 14 members of staff while investigating the Complainant’s grievance, the process was never concluded. He also told the Court that he had consulted with both As I Am and with IBEC in relation to the issue of reasonable accommodation for a neurodivergent employee. He said that the Respondent did not carry out a workplace assessment, as had been recommended by Medmark, but that this would have been done as part of a return-to-work plan.

5.Evidence of Ms Grace Sinnott

The witness told the Court that she has worked for the Respondent for 5 years as a General Manager with responsibility for cinemas in Carlow and Waterford. Much of her time, she said, was given over to assisting, training and recruiting other managers. She said that the Complainant had often made statements such as ‘I’d love a weekend off’ to her but had never made a specific request for reasonable accommodation to her.

She referred to the October 2023 projector issue. Her evidence was that she was in Carlow when the incident occurred and that she had attempted to work through the issue with the Complainant on the telephone but that he told her he had to go home to feed his cat before the matter was resolved. It was subsequently resolved over the telephone with the Supervisor who came on duty.

The witness said she was concerned for the Complainant’s well-being around this time as he had spoken about his urge to drive his car into a wall or into an oncoming vehicle. She said that she recommended the EAP to him as well as talking to his therapist and to his wife about those feelings.

The witness told the Court that she attended the meeting on 17 November 2023 only as note-taker. She also said that she was the person who had progressed the Complainant’s request to be provided with the hearing loop. She denied ever referring to autism as a superpower.

Under cross-examination, the witness accepted that she had been aware of the Complainant’s autism from an early stage but did not accept that he had made a formal request to her for reasonable accommodation. She explicitly rejected the claims made by the Complainant in this regard in his email of 25 October 2023, she said, as all her conversations before that with the Complainant had been casual in nature. Asked why she had not replied to the email of 25 October to put her denial of the Complainant’s claims on record, she replied that she had been worried about him for about 3 to 4 weeks before the issue with the projector occurred.

6.The Law

Section 16(3) of the Act provides:

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

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

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

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

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

(i) the financial and other costs entailed,

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

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

(4) In subsection (3)—

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

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

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

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

“employer” includes an employment agency, a person offering a course of vocational training as mentioned in section 12(1) and a regulatory body; and accordingly references to a person who has a disability include—

(a) such a person who is seeking or using any service provided by the employment agency,

(b) such a person who is participating in any such course or facility as is referred to in paragraphs (a) to (c) of section 12(1), and

(c) such a person who is a member of or is seeking membership of the regulatory body.”

7. Discussion

The duty on an employer to provide reasonable accommodation to an employee with a disability, in the Court’s understanding, is to remove any barriers experienced by the employee in question to participation in his or her workplace through the performance of the job which he/she was employed to do. An employer’s obligation to provide reasonable accommodation is not, however, unlimited: both section 16(3)(b) and the underlying Directive (Directive 2000/78, Article 5) identify the key test as being whether or not potential reasonable accommodation would impose a ‘disproportionate burden’ on the employer.

The recommendation made by the Medmark physician in relation to the forms of reasonable accommodation that, in their professional opinion, would assist the Complainant to return to work, following both referrals, have been reproduced verbatim above. They include:

• Rostering the Complainant to work set working hours rather than variable shift patterns;
• Putting him on earlier rather than later shifts, as the latter tended to disrupt his sleep patterns and negatively impacted his mental health;
• Providing him with regular structured short breaks from work;
• Facilitating him with access to a quiet space and supplying him with noise cancelling headphones;
• Conduct a formal workplace needs assessment with a suitable qualified assessor, who may be able to give advice about additional accommodations specific to theh Complainant’s skills, workplace and role, possibly with the assistance of a dedicated support organisation such as As I Am.

It is accepted that the Respondent did facilitate the Complainant in setting up a quiet space that he could avail himself of to take breaks and did also provide him with noise-cancelling headphones in response to the Complainant’s steadfast efforts to secure such accommodations. Mr Fitzpatrick, in evidence, did state that he had made contact with As I Am but did not elaborate on what guidance, if any, he received from that organisation in connection with the Complainant’s situation or whether or not that guidance had been implemented. It is also accepted that the Respondent made three separate proposals regarding revised rostering arrangement with a view to facilitating the Complainant’s return to work.

In the Court’s view, the Complainant had an extremely clear insight at all stages into his disabilities, the impact of his working arrangements on his well-being and the particular forms of accommodation that would assist him to perform his role. He articulated his request for reasonable accommodation to the Respondent from an early stage after he began experiencing difficulties at work. His requests were very much in line with what the Respondent’s chosen occupational health consultant subsequently recommended. Nevertheless, the evidence of the Respondent’s witnesses indicates that there was considerable delay on the Respondent’s part in engaging meaningfully with the Complainant in relation to suitable rostering arrangements that would not impact negatively on his health and wellbeing. No cogent argument was advanced before the Court to the effect that the Complainant’s requests in this regard, and echoed in the Medmark reports, would impose a disproportionate burden on the Respondent or would not be effective in assisting the Complainant to fully undertake his role as Duty Manager. The Court can only conclude, therefore, that Complainant’s request (and Medmark’s recommendations) could have been met and done so in a timely fashion, had the Respondent truly been committed to facilitating the Complainant’s return to work.

8. Determination

The Complainant’s appeal is upheld and that of the Respondent fails. The decision of the Adjudication Officer is varied in so far as the quantum of compensation the Court finds is payable to the Complainant for the effects of the discrimination he experienced is increased to €29,000.00, which approximates to one year’s gross salary. In determining the foregoing level of compensation, this Court has had regard to the reasoning of the Court of Justice of the European Union in Von Colson v Land Nordrhein-Westfalen Case14/83 [1984] ECR 1891, wherein that Court emphasised that awards for the effects of discrimination should be effective, dissuasive and proportionate.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
AM	______________________
25/05/2026	Deputy Chairman

NOTE

Enquiries concerning this Determination should be in writing and addressed to Ms Áine Maunsell, Court Secretary.