Complainant

Respondent

Parties

Nancy  Doherty

Figary Water Sports Development Company Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Siobhan McCormack North Connacht and Ulster Citizens Information Centre

Donnacha Anhold Carter Anhold & Co., Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00064042-001

11/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00064042-002

11/06/2024

The complainant, Ms Nancy Doherty, worked as Marina Manager for the respondent, Figary Water Sports Development company Ltd.  She alleges that she had her hours reduced, initially to two days per week and subsequently to zero hours, due to her disability.

Evidence was given under oath/affirmation at the hearing for the complainant by Ms Nancy Doherty and Ms Enya Doherty and for the respondent by Mr John McDaid and Mr Gary McLaughlin.  All evidenced was subject to cross examination.

All documentation received was considered by me as part of my decision.

Preliminary Issue

The respondent contends that the Complainant’s application is out of time on the basis that her complaints are outside the six month statutory time limit. Section 77 (5) of the Acts is clear that a claim for redress in respect of discrimination may not be referred after the end of the period of 6 months from the date of occurrence or, as the case may require, the most recent occurrence of the act of discrimination to which the case relates.

In the Complainant’s case it is her submission that the last act of discrimination occurred on 12th December 2023 when Michael McDaid attended the office in a hostile manner and effectively barred her from the workplace, by demanding that she leave. The WRC Complaint was issued on 11th June 2024, within 6 months of the date of the most recent act of discrimination.

Substantive Case

The complainant commenced work at Figary Water Sports Development Company Limited (the respondent) on the 1st of July 2002 as a Marina Development Coordinator on a fulltime basis from 9am to 5pm. She was not provided with any written terms or conditions nor did she receive any wage slips. On the 14th of February 2005 she was granted a 5% shareholding in the Company as non-cash recognition for her work.

The complainant’s only office space was a small porta cabin with no hot water, and no heat other than a plug- in heater and there were no kitchen facilities.  Irrespective of the fact that her working environment was in contravention of the Safety, Health and Welfare to Work Act 2005, in terms of acceptable temperature range and lack of facilities, the complainant just got on with her work.

The complainant satisfies the test for disability under Section 2(1)(b) and (c) of the Acts that stipulate that disability means:

(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,

Medical evidence provided indicates treatment for a number of cancers including surgery, radiotherapy and ongoing chemotherapy medication.

Throughout her periods of sick leave due to various cancer diagnoses and ongoing cancer treatment no Safety Statement or Risk Assessment was carried out when she returned to the workplace, irrespective of her significant disabilities and treatment.

As Marina Coordinator the complainant was responsible for the overall running of the marina. Her duties included allocation of berths, collection of fees, record keeping, accounting, dispute resolution, collection of litter, checking the boats, bank deposits and ordering supplies. The complainant was the only full-time employee based at the marina and the point of day contact for the boat owners.  The complainant was extremely committed and passionate about her work.  Despite various cancer diagnoses it was fundamentally important for her to return to her workplace duties. At no stage during her employment did she ever approach her employers to accommodate her in her working duties, as a result of her disabilities. She never approached her employers to request that her full time hours would be reduced, but her employers took it upon themselves to reduce her hours and employ someone else without any consultation. The complainant believes that they did this because they held the belief that she was not fit to fulfil her role as a Marina Coordinator, regardless of the fact that she was certified as fit to return to work by her doctor. At no point in time did the respondent ever approach her and conduct any form of Safety Statement or Risk Assessment surrounding her work duties, when she returned to work after any period of sick leave. If they had done so the complainant may have requested assistance in the more menial tasks such as litter collection and checking the boats, particularly at the early stages of returning to work, after the intensive and harsh radiotherapy treatments that she had undergone.

When she returned to work after various radiotherapy treatments at no stage did the Directors of the Company ever come to personally see the complainant nor did they contact her. She kept them informed about her regular hospital reviews, but this is the extent that her health condition was ever discussed.

In or around the end of March 2023, two Directors, John and Charlie McDaid came into the office one day unannounced and informed the complainant that “she would not like it” but that a decision had been made to decrease her days from 5 days to 2 days a week. The complainant was in complete shock at this reduction of her full-time hours without any prior consultation. She was extremely vulnerable as a result of her battle with the various cancer diagnoses at the time and did not feel physically or emotionally fit to challenge this decision in a formal way.

Approximately one month prior to the reduction in days coming into effect, the complainant was contacted by Michael McDaid who asked her to train his daughter in office duties. The complainant did not question this request at the time and attempted to train Ms McDaid in office duties, with some difficulty. After a few weeks Mr Gary McLaughlin, informed the complainant that he had been approached by John and Charlie McDaid and asked if he thought Ms McDaid “was up to the job”. He told the complainant that he informed them that he did not think so. John and Charlie McDaid then asked Gary if he would contact Ms B, who covered the complainant’s absence in the o􀆯ice when on sick leave. The complainant was extremely upset at hearing that this had happened and felt that her position as Marina Coordinator had been undermined by her employers. It was clear to her that her employers were trying to push her out. The only reasonable explanation for their actions would be that they no longer wanted her to be Marina Coordinator because of her substantial disabilities. At no stage during her entire time of employment was there any issue raised about her capacity to work or her work ethic. The complainant believes that their actions were motivated by a plan that ultimately they no longer wanted the complainant to be the face of Figary Water Sports, because of her disabilities. As a result of a salivary gland tumour, the complainant has issues with numbness in the left side of her face, which leads to a speech impediment at times. Her various cancer diagnoses have clearly had an impact on her health, physical ability and appearance.

In or around a week before her days were reduced at the start of September 2023 her employers installed a much larger, newer porta cabin with heating, kitchen facilities, hot water and room for two desks in order to accommodate the second employee. The complainant’s days of work were reduced to Monday and Tuesday every week and the new worker, Ms B, worked Wednesdays, Thursdays and Fridays. When the complainant discovered that her wages had not been reduced to correspond with her days, she contacted John McDaid to inform him of the error. She also contacted the bank but was informed that they could not change the standing order electronic transfer until such time that John McDaid contacted the bank as Director of the Company. The complainant informed John McDaid of this and said in the meantime, pending his signature, she would withdraw the excess wages of €300 per week and place it in the petty cash till.

On the 4th of December 2023, Michael McDaid attended the office unannounced and informed the complainant that they had decided to close the office every Monday and Tuesday, beginning the following week. The complainant believed that this was a deliberate attempt to push her out as her reduced hours were scheduled for Monday and Tuesday’s every week and the new staff member, Ms B, worked Wednesday to Friday. The complainant contacted John McDaid that day by phone call to challenge this decision, and he responded that he would get back to her.  He subsequently replied saying he would speak to the complainant about the matter in the New Year.

On Tuesday the 12th of December 2023, the complainant attended the office as usual. Michael McDaid came bursting into the office that morning and questioned her in a very hostile and irate manner: “What are you doing here?”. The complainant was shocked to see him, particularly as there was no reason for him being there. The complainant understood that he had no longer any part in the management of the company.  The complainant responded to him that she was still waiting for a reply from John McDaid, and he said in response, in an irate manner that “I told you”.

 The complainant left the office that day uncontrollably shaking and distressed. Her GP’s report confirms that she was diagnosed with hypertension as a result of work-related stress symptoms.

That day the complainant received an email correspondence from John McDaid stating that he would contact her in the New Year. It was not until the 19th of February 2024 that the complainant was asked to attend a meeting. The complainant was extremely nervous about attending, as she was suffering symptoms of acute work-related stress, which had exacerbated her physical health condition. Her employment position was not even discussed at this meeting. John and Charlie McDaid said to her at the meeting that they would agree to buy her shareholding for a specified sum. The following day John contacted the complainant to inform her that her employers did not wish to proceed with buying her shares. This was the last communication the complainant ever received from her employers.

It was only after the complainant returned to the workplace with impairments and ongoing cancer chemotherapy treatment that her employers took action to push her out of her position with the goal to replace her. Ms B is an employee without any physical disability and is the relevant comparator.

The Respondent’s denies that they employed another individual to replace or supplement the complainant’s role in the marina and that any individual who came to assist at the marina did so at the complainant’s request and in a “voluntary capacity”. The complainant alleges that while her employers are denying employing Ms B, which is untrue, their actions were motivated by an intention to push the complainant out of her role because of her disabilities

In addition, Mr Gary McLaughlin’s statement is dated 6th January 2025 yet he makes no reference to his new position as Marina Manager in what can only be described as an effort to portray himself as an impartial observer. His assertions that the complainant approached him to discuss taking more time off work to assist in providing her daughter with childcare is untrue.

At no stage did the complainant ever ask her employers to reduce her working week. With regards to Ms B, it was Mr Gary McLaughlin himself that informed the complainant that the Directors had asked him to contact her.

The complainant is alleging the following:

A           - Discrimination based on, "reasonable accommodation" for a disability.

B           - Alleged discrimination "against me in conditions of employment"

Furthermore, the complainant alleges discriminatory behaviour with regard to the reduction of her working days. This seems to be the sum total of the complaints as can be understood from the complaint form and submissions already submitted. There is no complaint alleging discriminatory based dismissal.

Preliminary Issue

Statute of Limitations Issue

Section 77 (5) (a) and (b) of the Employment Equality Act 1998 provides as follows;

77(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this part shall have effect accordingly.

Therefore, it is again submitted and clearly evident that the vast majority of the complainant's claim is out of time.

The complainant has, however, referred to one alleged incident of discrimination which occurred on the 11th of December 2023, and possibly on the 12th of December 2023. It is hereby submitted these are the only possible incident or alleged incidents of potential discrimination that the adjudication can adjudicate on, in circumstances where they are possibly within the time allowed under section 77 (5) of the Employment Equality Act, 1998. In accordance with the submissions of the complaint, this complaint must be confined and isolated to those particular incidents of the 11th and 12th of December 2024. The submission by the complainant that as a result of filing her claim form on the 11th of June 2024, which is not outside six months of the 11th of December 2023 and the 12th of December 2023 therefore validates all previous incidents is simply not correct, and one which is repugnant to the stipulations of section 77 (5) of the Employment Equality Act 1998.

Therefore, it is the respondent's clear submission that any complaint adjudicated on should be confined specifically to these two dates. That being the 11th and the 12th of December 2023.

Substantive case

Sections 6 (1) and (2) of the Employment Equality Act, 1998 (at relevant parts state):

6.(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where.

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which.

(i)          exists,

(ii)         existed but no longer exists,

(iii)        may exist in the future, or

(iv)        is imputed to the person concerned,

(b) a person who is associated with another person,

(i)          is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii)         similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are,

(a) - (f) not relevant.

(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 clear that the complainant must satisfy the burden of proof under section 85A of the Employment Equality Act 1998 in accordance with what occurred only on the 11th and the 12th of December 2023. The burden of proof is strictly imposed upon the complainant herein, and the complainant must satisfy this adjudication where the burden of proof rests on the complainant that discrimination occurred on those dates.

One other specific requirement of a discrimination claim under section 75 of the Employment Equality Act 1998 is that the complainant must provide a sufficient comparator. That comparator must be named. The complainant has named Ms. B as a comparator, but very little detail is provided thereafter, and there is no evidence to date tendered before the Workplace Relations Commission as to how that comparator is relevant.

The complainant complains about the physical work conditions of her place of employment. There was never any issue with the physical conditions of employment at any stage, and the working conditions were always of adequate measure, and the first cabin was well-ventilated, held a fire certificate, was supported by First Aid provisions, and was of decent working condition.

However, in relation to this issue, the first porta cabin, any complaint made about the working conditions with regard to the first porta cabin is out of time.

It is clearly accepted by the complainant that a new porta cabin was installed in either August or September of 2023 and at that time, the complainant enjoyed the benefit of that new porta cabin. It is accepted in the complainant's submissions that this porta cabin was installed in either August or September 2023. There does not appear to be any complaint raised with regard to the new porta cabin setup and therefore, any complaint about the working conditions should have been submitted earlier than the 11th of December 2023, given that the complaint was only submitted six months after that on the 11th of June 2024. Any complaint made about the previous porta cabin should have been lodged within six months of August 2023, which has not occurred, therefore, this complaint is out of time at this juncture or at the point of when the complaint was filed on the 11th of June 2024.

Equally the claim for reasonable accommodation is out of time for the points as raised above.

The complainant complains about how working days were reduced, but it is the clear submission of the respondent that these days were reduced in accordance with the request of the complainant. Bearing in mind, the complainant was paid at all times for work done on specific days. It is further noted that at no stage did the employee ever raise a query or complaint, by way of email or letter to the employers that she had a difficulty in any way, shape, or form with the days reduced, therefore signifying her consent to same.

It is alleged by the complainant that on the 12th of December, she attended the office and Mr. Michael McDaid, who is not an employee or officer of the company, questioned her in a hostile manner. This is not something that can be dealt with by this adjudication in circumstances where Michael McDaid was not an officer of the company. It appears without raising any questions thereafter, the complainant, left the workplace and did not return.

It also must be highlighted that a reduction in working days, of which the respondent say was with the consent with of complainant, occurred at the start of September 2023. Therefore, any complaint filed in that regard should have also been submitted within six months of the last day of September 2023, being the 30th of March 2024.

Finally, the high bar to reach in relation to burden of proof, is a burden of proof which the complainant must overcome to seek to successfully claim discrimination based on her conditions of employment and reasonable accommodation has not been met, as alleged. The respondents will also seek to rely upon a recent decision of the Labour Court of the 9th of September 2025, being a Senior Manager v. a Restaurant,  which illustrates the high bar which any complainant must reach to allege discrimination and equally, this case centres around the issue of reasonable accommodation and against the employee's conditions of employment.

Preliminary issue.

The text of the complaint indicates that her conditions of employment in relation to hours of work were changed to the extent that her employment was not viable.  This culminated in a meeting on 4th December 2023 in which she was told her two remaining days were gone and, on 11th December 2023 when she was told to leave the premises.  This incident falls within the cognisable period and therefore I have jurisdiction to hear this complaint.  The complainant withdrew the complaints in relation to the office accommodation provided at the hearing.

The respondent conceded that the respondent was in breach of the Terms of Employment (Information) Act, 1994.  However, the respondent argues that the complaint under the Act is out of time.  I note, that at the time her employment terminated, the complainant still had not received a copy of her terms of employment, as required by the Act and therefore on that date the respondent was in breach of the Act and, as this falls within the cognisable period, I have jurisdiction to hear the complaint.

Substantive case

CA-00064042-001  Employment Equality Act 1998

In any case involving an allegation of discrimination the burden of proof between the complainant and the respondent must first be considered. Section 85A of the Act provides that where a complainant establishes facts from which discrimination may be inferred it then falls to the respondent to prove that the principle of equal treatment was not infringed.

The established test for ascertaining if the burden of proof shifts to the respondent was set out in Mitchell v Southern Health Board [2001] E.L.R. 201. That three-tier test provides: -

1)    It is for the complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination.  If the complainant fails to do so. he or she cannot succeed.

2)    If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3)    If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the respondent

The primary facts contended by the complainant are that the respondent reduced her working hours, initially to two days per week, and subsequently to zero hours, due to her disability.  The complainant states that the relevant comparator was Ms B who did not have a disability and did not have her hours reduced.  The respondent has stated that Ms B was not an employee.  However, in evidence the complainant showed that Ms B applied for annual leave in November 2023 and that furthermore, she was paid out of petty cash.  I find therefore that Ms B is a suitable comparator.

The respondent accepted that the complainant suffers from a disability within the meaning of the Act. The complainant, who had a disability,  had her hours reduced to zero and the comparator, Ms B, did not.  I therefore find that the complainant has established a prima facie case of discrimination and the burden of proof moves to the respondent to show that discrimination did not occur.

The respondent denied that the meeting of 11th December 2023 with Mr Michael McDaid took place.  However, the email of 12th December sent by the complainant to Mr John McDaid, references that meeting.  This account was not refuted by the respondent at that time and Mr John McDaid did not say that Mr Michael McDaid had no standing to issue any instructions to the complainant.  I therefore accept that it happened.  I note that Mr John McDaid responded to this on 15th December and said he would like to meet the complainant in the New Year to discuss ‘how to move forward’.  While the tone of this email is conciliatory there is no commitment to reverse the decision. I note that there were no policies, such as a grievance procedure, in place.  In the absence of such policies the employer runs the risk that an employee may feel that they have no avenue in which to seek to have perceived problems rectified.  Any consequences are therefore of the employer’s making. Mr John Mc Daid said he continued to pay her because he thought she was coming back.  However, at no stage did he reverse the instructions given by Mr Michael McDaid.  Whether his intentions were good or not, ultimately the onus was on him to be proactive regarding any ‘misunderstanding’.  He did not do so and therefore I conclude that the complainant was discriminated against in relation to her conditions of employment.

There was differing accounts as to why the initial reduction in hours took place, with the respondent saying that it was at the request of the complainant.  This was denied by the complainant.  However, it would appear that, whatever her feelings were at the time, the complainant accepted the original reduction in hours and therefore I do not accept that she was discriminated against in that instance.  Accordingly, her wages at the time of the latest discrimination were €230 per week.  I note that, for whatever reason, the respondent continued to pay her for 6 months after her employment terminated.  The maximum award is 104 weeks pay which would equate to €23,920.  I am reducing this to €20,000 in recognition of the above payments made by the respondent following the termination of employment.

CA-00064042-002  Terms of Employment

The respondent concedes that he did not give the complainant a copy of her terms of employment as required under the Act and therefore the complaint is well-founded.

I order the respondent to pay the complaint €300 in respect of the breach of this Act

CA-00064042-001  The complainant was discriminated against and I order the respondent to pay her the sum of €20,000 in compensation.

CA-00064042-002  the complaint is well-founded and I order the respondent to pay the complainant the sum of €300 in compensation

Discrimination, burden of proof