Complainant

Respondent

Parties

Lisa  McNew

Verizon Services Ireland Limited

Representatives

Mr J Murray BL instructed by Jennifer McCarthy of Daniel Spring & Co. Solicitors

Ms MP Guinness BL instructed by Siobhra Rush of Lewis Silkin 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-00067978-001

10/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00067978-002

10/12/2024

The Complainant is a Senior Manager in a major multinational IT/Telecoms Company. The employment in Ireland began on the 2nd August 2017 and continues.

The rate of pay was stated by the Complainant to have been €183,000 per annum for a 37.5 hour week.

The primary issue in contention was a Discrimination Complaint on the grounds of Disability, Failure to make Reasonable Accommodation, Gender, Age, Race, Failure to Promote, Discriminatory Conditions of Employment and Victimisation.

The secondary issue was a complaint of Victimisation under the Protected Disclosures Act 2014 relating to a protected disclosure concerning inappropriate supplier relationships on a US Contract in March 2022.

1:1        CA: 00067978-001 – Employment Equality Act, 1998

The Complainant was represented by Mr Murray BL. A substantial written submission was provided and supported by considerable Oral testimony from the Complainant.

The Complainant produced medical evidence to support her assertion that she had a Disability requiring a specialist HRT treatment programme only available in the United States.

The treatment requires attendance for approximately three days in the US four times per annum. It is non-invasive and is effectively preventive.  It is perfectly compatible with normal working routines. It does not make the recipient “Sick”. However, failure to obtain this treatment has chronic health implications for the Complainant.

The Complainant requested the facility to work remotely from the US during these periods. This was refused by the Respondent who suggested the days in the US be categorised as Sick leave or Unpaid leave.

The arguments put forward by the Respondent that the Remote Working would create a potential Tax Exposure for the Organisation, a Global Multinational were without any realistic basis. The treatment was minor but not available in Ireland. The Complainant did not see why she should use her annual sick leave allocation to cover the days involved. The days were meant to be kept for a genuine illness, winter flu etc.

Supporting Medical Witness evidence was given by Dr R – an Occupational Health Practitioner - in addition to very supportive written certificates from the GP of the Complainant. Dr R was vigorously cross examined by Counsel for both Parties.

In further submission the Complainant stated that she had been Discriminated on the Age, Gender and Racial grounds in promotional competitions in Ireland. She was clearly an American Lady, older than other colleagues. She had not been afforded a fair process in various Promotional competitions. The Respondent had also Victimised her as a result of her Protected Disclosure complaints.

The Complainant lodged an extensive formal Grievance, embracing the entire situation, with the Respondent, in December 2024. Regrettably the Respondent Investigation did not find in the Complainant’s favour. The Complainant alleged that the entire Internal process had completely failed to properly understand her Disability situation and had glossed over her evidence as Regards to discrimination in Promotional Competitions.

Detailed Legal arguments were put forward by Mr Murray regarding the proper definition of Disability and the need for Reasonable Accommodation. Case law referred to included Nano Nagle School V Daly [2019] 3 IR 369, Mitchell v Southern Health Board DEE1/2001 [2011] 12 ELR 201E, Dept of Justice E quality and Law Reform v CPSU and Valpeters v Melbury developments Ltd [2010] ELR 64

In final summary Mr Murray argued that the Respondent had failed to provide Reasonable Accommodation (Remote Working in the USA) for a recognised disability and had allowed discrimination in Recruitment practices to take place.

1:2    CA: - 00067978-002 Protected Disclosures Act, 2014

In Oral Testimony the Complaint argued that she had made a Protected Disclosure in 2021 regarding alleged inappropriate commercial Supplier relationships in the USA.  This had resulted in her being “under a cloud” & “Had a Personal Brand Issue” (in Recruitment feedback to the Complainant).  She had effectively been victimised by the Respondent in latter Recruitment competitions. It was presented as part of the negative internal “climate” the Complaint had faced since then especially as regards the Equality Discrimination complaint referred to in section 1.1. above.

2:1        CA: 00067978-001 – Employment Equality Act, 1998

The Respondent was represented by Ms MP Guinness BL. Considerable Oral testimony was presented supported by a comprehensive Written Submission. A number of Senior Managers, principally Mr DM -Associate Director of Software Engineering  and Mr BD, a Senior Corporate HR Manager gave oral testimony. A Corporate Taxation Senior Manager, Mr W, remotely from London, also gave evidence. All were extensively cross examined by Mr Murray BL for the Complainant.

Dr R, an Occupational Health Specialist, from Precision Health, gave an extensive Oral testimony.

In summary Ms MP Guinness, BL, made the following points.

Firstly, large elements of the claim were Out of Time as they allegedly took place outside of the Cognisable Period (10th June 2024 to 10th December2024). Issues that had arisen as far back as 2020 and earlier could not be considered. There was, in addition, no basis for a “Continuum of Discrimination” case to be made to attempt to link past events to more recent events in the Cognisable Period.

Secondly, the Complainant had failed to establish, without doubt, the existence of a qualifying Disability, especially during the Cognisable Period. Ms Guinness referenced extensive ECJ case law on the issue of the difference between an Illness and a qualifying Disability. It was stated that the Complainant had to establish the difference between the “vicissitudes of life” i.e. short-term issues linked to stages in life and a Disability. The direct Medical evidence presented during the hearing, especially from Dr R, was open to very differing interpretations. Dr R had emphasised that he was an OH Practitioner not a Senior Hospital Specialist who might give an opinion on the unique situation of needing treatment only available in the USA.

Thirdly the Complainant had failed to establish a proper Prima Facie case of Discrimination against her. Allegations had to be grounded in hard evidence. The Internal Grievance Hearing, which was detailed and extensive, had fully investigated the matters alleged. It had found no hard evidence of Discrimination on the grounds alleged.

Fourthly, the complaint of failure to provide Reasonable Accommodation could not be sustained in the light of the very “reasonable” actions of the Respondent Employer particularly bearing in mind the legal & taxation position.

On all of the above grounds the Complaint had to be rejected.

2:2    CA: - 00067978-002 Protected Disclosures Act, 2014

This element of the complaint was not actively pursued during the Oral Hearing and was not emphasised in the Complainant’s written submissions. None the less it formed part of the background scene setting for the Discrimination complaints.

3:1        Legal Position

CA: 00067978-001 – Employment Equality Act, 1998

Section 85 A of the Act is particularly relevant.

[Burden of proof.

85A.—(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 him or her, it is for the Respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a Complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the Respondent to prove the contrary.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

In plain English and as clarified by the Superior Courts and the Labour Court -especially in Mitchell v Southern Heath Board [2001] ELR 201 a Complainant has to establish primary facts that a safe basis for drawing an inference of discrimination can be based upon.

As regards Disability the ECJ has made various rulings that focused on the difference between Illness (the vicissitudes of life in the Respondent’s words) and Disability – the landmark case would be Chacon Navas v Eurest Colectividades SA [2006] 3 CMLR 40 with follow up cases such as Fag og Arbejde v Kommunernes Lands forening [CMLR 192015]. From these cases, key issues to be considered were the severity of the alleged Disability and the Likely Duration.

Section 2 of the Irish Employment Equality Act 1998 gives the following definition.

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future, or which is imputed to a person.

The Irish Labour Court and Higher Courts have in general tended to a more open approach in regard to what can be classified as a Disability as opposed to an illness. Bolger, Bruton and Kimber at para 7-46 of the 2012 Editon of Employment Equality Law -Round Hall states that

“The definition of disability employed by the Employment Equality Acts does not act as a gatekeeper to the protections contained within the Acts”.

In relation to Reasonable Accommodation the Labour Court (Swan O’Sullivan v Counihan EDA 10/20180) tended to the view that before a complaint of refusal to make “reasonable accommodation” can be sustained the Employer has to have been fully informed in advance of the nature of the disability with all surrounding factors satisfactorily outlined.

However, legal matters and precedents notwithstanding, all cases rest on their own evidential foundation, and this has to be primarily considered in an Adjudication.

3:2     Consideration of the Evidence presented both Oral and Written

3:2:1 “Disability” was a foundation issue in this case. The Respondent side called Dr R, an Occupational Health Practitioner who had reviewed the Complainant at the Respondentia’s request. This had to be taken in conjunction with the very supportive views of the Respondent’s personal medical advisors.

Reading the notes from Dr R’s oral testimony, his written Report on 15th September 2025 and his responses to cross examination from Counsel for both sides, the Adjudication view has to be that while the question of a Disability had a good degree of ambiguity the balance had to swing in favour of the provisions of Section 2 of the Employment Equality Act,1998

 (disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person).

 Accordingly, it was accepted that a Disability existed.

This Adjudication view was felt to be in keeping with the views expressed in Bolger, Bruton and Kimber- Employment Equality Law – the preeminent Text in the area.

3:2:2 “Reasonable Accommodation” was a follow-on question.

Mr Murray for the Complainant cited extensively from the landmark Nano Nagle School V Daly [2019] 3 IR 369. In the case in hand the Adjudication question came down to a view as to whether the Accommodation offered by the Respondent – (a mix of sick leave days and unpaid leave) and the Accommodation sought by the Complainant (four brief periods of Remote Working while based in the United States) was the more reasonable.

The major issue for the Respondent was the possible taxation Exposure of the Company when an employee was working in the United States but employed in Ireland. (A maximum duration per annum of 15 days is allowed once the 15 days is not subdivided which would be required here). The Respondent is a major multinational with extensive Taxation arrangements covering all jurisdictions. It is recognised that the Taxation issue was /is of particular sensitivity at present between the USA and other jurisdictions such as the EU/Ireland.

The Respondent called Mr W -a Respondent Corporate Taxation Specialist based in London. In his oral Testimony and cross examination, it was clear that the current Respondent Taxation policy, with its concomitant Remote Working rules, is absolutely sacrosanct. In plain speak, the possible Corporate down sides (drawing the unfavourable attention of US Revenue to the Irish /US Taxation situation) of allowing the Complainant, even for the best motives, work remotely as suggested far outweighed any possible benefits to the Complainant as an employee. Mr W came across in his considered Testimony, not as a Corporate “doomsayer” but as a considered expert particularly in the USA taxation climate. In the Adjudication view, his evidence carried some persuasive weight.

Section 16 (3) of the Act comes to mind.

Nature and extent of employer’s obligations in certain cases.

16.

(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this 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.  

(Adjudicator Highlight.)

 Section 16(3) (i) is most pertinent as regards a possible “disproportionate burden”.

In considering the Respondent position the Evidence from Mr BD, the HR Senior was most useful. He had written a most comprehensive reply to the Complainant on the 3rd October 2025. To an independent and reasonable outside observer and in this case the Adjudicator, the position set out by Mr BD was eminently practical and satisfactory. It was in the Adjudication view a “Reasonable Accommodation” as required by the Act.

Mr BD, a Senior HR Practitioner, presented as a witness considerable experience, who was clearly anxious to resolve the situation with the Complainant, a valued employee. The Adjudication Officer found him persuasive.

3:2:3      Other aspects of alleged discrimination. Race/Gender/Age

Most of these aspects focused on unsuccessful Complainant outcomes in Recruitment Competitions. Even if a “blind eye” is allowed to the “Cognisant period” argument (which would rule out most of the complaints) the outcome of Recruitment competition is a fraught area in an Equality context. The Respondent pointed to examples of Females and non-USA staff of varying ages being successful.

 Very specific evidence is required which cannot be supplanted by supposition. In this case there was no doubt that the Complaint had a very unsuccessful experience, but to assume that this was due to her being an American female of a certain age needs very strong supporting evidence. Regrettably for the Complainant this was not presented, to the degree required, in this case.

3:3        CA: - 00067978-002 Protected Disclosures Act, 2014

This aspect of the complaint was not actively pursued in either the Written or Oral Testimonies of the Complainant. As most of the incidents referred to were well outside the “Cognisable Period” and little direct evidence was presented by either side, it had to be concluded that the complaint could not be properly Adjudicated upon.

Discrimination, Reasonable Accommodation, Protected Disclosures