EDA2653

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00044777 (CA-00055486-001)

BACKGROUND:

The Employer appealed the decision of the WRC Adjudication Officer under Section 83 Employment Equality Act, 1998 on 21 February 2025.

Labour Court hearings took place on 30 April 2026 and 20 August 2026.

The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Tesco Ireland Ltd of a decision of an Adjudicator Officer (ADJ-00044777, CA-000554860-001, dated 16 January 2025) in a complaint taken by Karen Rice under the Employment Equality Acts 1998 (“The Act”).

The Adjudication Officer found that Tesco Ireland Ltd discriminated against Karen Rice on the disability ground when it failed to provide her with reasonable accommodation. In a linked complaint, the Adjudication Officer held that Karen Rice was subject to discriminatory dismissal on the disability ground in breach of the Act. The Adjudication Officer made an award of €40,000 in respect of both complaints.  Tesco Ireland Ltd appealed both decisions to the Labour Court.

The Labour Court conducted a hearing of both appeals over 2 days in Dublin on 30 April 2026 and on 20 August 2026. Both parties made submissions and the Court heard sworn testimony from the Complainant and witnesses on behalf of the Respondent. For ease of reference the parties are given the same designation as they had at first instance. Hence Karen Rice is referred to as “the Complainant” and Tesco Ireland Ltd is referred to as “the Respondent.”

The determination of the Court in relation to the complaint about discriminatory dismissal is set out in EDA2652.

1. Background

The Complainant worked as a Customer Assistant at the Tesco Store in Ballyfermot since November 2007. In June 2020, the Complainant suffered from an aneurysm while at work, which significantly affected her vision. Thereafter, she was on long term sick leave due to her visual impairment.

The parties accept that the Complainant suffers from a disability for the purposes of the Act. The Complainant submits that the Respondent did not provide her with reasonable accommodation in respect of her disability. The Respondent refutes that it is breach of the Act and contends that the Complainant has not established facts from which a prima facie case of discrimination can be established.

2. Summary of Complainant’s Position

The Complainant went on long term sick leave in June 2020 having suffered an aneurysm which significantly affected her vision. She received a formal diagnosis on 30 July 2021 and wanted to return to work. Solicitors for the Complainant wrote to the Respondent on several occasions requesting that the Respondent meaningfully engage with the Complainant and be facilitated with a referral to occupational health to assess her capacity to return to work.

In reply to a letter in November 2020, the Respondent claimed that they had offered the Complainant a welfare meeting and a prospective occupational health appointment in January 2021. No such offer was made. The Complainant accepted the referral and requested that any meeting take place after January 2021. The Respondent failed to respond to this. The Complainant’s solicitors wrote to the Respondent in February 2021 seeking an update. The Respondent agreed to a meeting on 23 February 2021. As the Complainant had not been provided with a date for an assessment, her solicitors wrote on 29 March 2021 seeking an appointment. The letter specifically requested assessment of reasonable accommodations.

An independent medical report, dated 15 April 2021, stated that it was unlikely that the Complainant would return to work duties because of “long term visual impairment”. That was the total extent of the explanation provided. The Report did not examine the possibility of a return with reasonable accommodations. The foundation of reasonable accommodation in equality is that it allows a person with protected characteristics of disability to work.

The Respondent wrote to the Complainant on 7 May 2021 to inform her that her position was now under review and to invite her to a meeting on 13 May 2021. The Complainant’s solicitors responded by letter of 12 May 2021 to say that a return to work was improbable unless accommodations could be made for her disability. The Solicitor enquired if any investigation of reasonable accommodation had been carried out. They also requested a copy of the Respondent’s retirement policy on ill health grounds.

The Respondent sought further clarification from the occupational health provider on reasonable accommodations. The response from occupational health reaffirmed that the Complainant was unfit to attend work and recommended a referral for a consultant ophthalmologist before assigning her to any role. This was not a review of accommodations but a recommendation to engage appropriate professionals to investigate them. A welfare meeting took place on 1 July 2021. The Complainant’s solicitors subsequently confirmed that the Complainant was due to meet her consultant on 30 July 2021 and would provide the Respondent with an update. The Complainant attended a welfare meeting on 10 August 2021.

On 24 August 2021, the Complainant opened a grievance based on three grounds relating the Respondent’s failure to provide a safe place of work. Grievance meetings were held on 31 August, 23 September 2021 and 6 January 2022. The outcome issued on 14 February 2022, which was appealed by the Complainant. An appeal hearing took place on 28 February 2022. An appeal outcome issued on 21 April 2022.

On 27 April 2022, solicitors for the Complainant wrote to the Respondent noting that the Complainant was fit to discuss a return to work and that the most recent occupational health report was nearly a year old and had not assessed her fitness to return to work. In the letter the Respondent was put on notice that it was their duty to assess potential accommodations.

On 16 May 2022, the Respondent replied stating that they would engage directly with the Complainant. The Complainant did not receive any communication from the Respondent. The Complainant’s Solicitors emailed the Colleague Relations Partner, on 29 September 2022 seeking an update on the Complainant’s file. The Colleague Relations Partner replied on 12 October 2022 to say that the query had been passed to the Respondent’s legal team who would be in touch. The Complainant’s solicitors received no further response.

The Complainant’s Solicitors wrote to the Respondent again on 24 January 2023. The Respondent failed to respond to this correspondence. The Complainant subsequently referred a complaint to the WRC in respect of the Respondent’s failure to reasonably accommodate her.

3. Testimony of the Complainant

In June 2020, the Complainant experienced blurred vision while at work. As she described her symptoms, her manager walked away. She was later referred to a consultant, who diagnosed an aneurysm that had significantly impaired her sight: she had no vision in one eye and severely blurred vision in the other. The Complainant was not ill but had a disability that prevented her from attending work.

While absent from work, she received no communication from the company. Her solicitors wrote repeatedly, requesting a referral to occupational health. At an occupational health assessment on 15 April 2021, she said that she wanted to return to work. The company subsequently invited her to a meeting about her position. In June 2021, occupational health recommended a referral to a consultant ophthalmologist, and the company asked her to obtain a letter from the Eye and Ear Hospital explaining her condition. Around the same time, she sought assistance with a grievance concerning her treatment by colleagues after she crossed picket lines at the store.

In April 2022, her solicitor wrote to the company, stating that it was obliged to provide reasonable accommodation and that assessing her role was not her consultant’s responsibility. Tesco told her solicitor that it would deal directly with the Complainant only, but the company did not do that. She felt ignored and set aside. After a year without communication from the company, her solicitor wrote again. In March 2023, she referred her complaint to the WRC.

Under cross-examination, the Complainant said she understood that the company needed to know the limitations arising from her condition before it could provide reasonable accommodation. She accepted that she had not suggested how she might perform her work. She did not know what duties she could undertake and believed that the doctor to whom the company had referred her should have assessed this. She accepted that the only document she submitted was a July 2021 report from the Eye and Ear Hospital. She provided no other documents or reports about her condition and did not submit an updated medical report after the company requested one in May 2022. The Complainant accepted that the 2021 and 2022 occupational health reports found her unfit to attend work. Although the 2021 report stated that she would not be fit to return for the foreseeable future, she believed she could have returned with training. She also gave the company the name of a contact with the National Council for the Blind (NCBI).

4. Summary of Respondent’s Position

The Respondent is an equal-opportunity employer with policies on dignity at work and preventing bullying and harassment. It is committed to a fair, respectful, diverse, and inclusive workplace. The Complainant bears the burden of proving disability discrimination under the Act. She has identified no comparator, shown no causal link between her disability and the alleged treatment.

The Complainant was on sick leave from 22 June 2020 due to significant visual impairment and ongoing mental health issues. The Respondent managed her absence through regular welfare meetings and occupational health assessments under its Sickness Policy. Medical and workplace assessments found her unfit to return in any capacity, with no reasonable accommodations or alternative roles identified. The Complainant consistently reported worsening vision, and occupational health gave no recommendations or return date.

Despite treatment, the Complainant’s vision deteriorated to blindness in one eye and blurred vision in the other, affecting her mobility, ability to locate objects, and screen use. She requested welfare meetings take place at her home. At a meeting on 10 August 2021, she said there were no measures to support a return and that treatment had stopped because she was not improving, pending a further specialist review in three months.

On 13 November 2020, the Respondent received a solicitor’s letter alleging that the Complainant had been bullied and victimised after crossing a picket line on 14 February 2017; management had not acted on her reports; she had reduced her weekly hours from 35 to 25 to avoid the behaviour; and she had experienced a medical incident in June 2020 but completed her shift. The solicitor requested a formal grievance investigation. The solicitor also requested an occupational health assessment.

The Respondent replied on 9 December 2020, and expressed surprise at the allegations, which had not previously been raised internally. It was agreed that a welfare meeting would be arranged to follow an occupational health assessment in January 2021, but the Respondent was advised that the Complainant was unavailable that month.

A welfare meeting scheduled for 11 February 2021 was ultimately conducted by the Store Manager on 9 March. The Complainant advised that she could not see in one eye and had blurred vision in the other. The Store Manager confirmed that an occupational health assessment would be arranged and an investigation officer had been appointed for her grievance. The Respondent agreed to the Complainant’s request to arrange an occupational health assessment first.

Occupational health assessed the Complainant on 15 April 2021. On 7 May, the Respondent advised that she was unlikely to resume normal duties in the foreseeable future and invited her to a meeting on 13 May because her position could not be held open indefinitely. She was asked to provide evidence if her own doctor expected her to be fully fit soon.

After the meeting, the Store Manager contacted occupational health to enquire whether reasonable accommodations could support a return. On 16 June 2021, the occupational health physician doctor confirmed that the Complainant was unfit for work and recommended a consultant ophthalmologist’s review before any role was assigned.

The Complainant attended a welfare review on 1 July to discuss the occupational health report and possible accommodations and a follow up meeting in August was scheduled. On 29 July, the Complainant’s solicitor said she was seeing her consultant the next day and would provide an update and requested the company’s ill-health retirement policy. At the meeting on 10 August 2021, the Store Manager enquired about the consultant’s appointment and possible support. The Complainant replied that she could not operate a checkout and questioned where else she could work.

On 9 September 2021, the Respondent proposed a further meeting to discuss the matter further, noting that her consultant had made no specific return-to-work recommendations. On 23 November 2021, the Respondent invited the Complainant to discuss reasonable accommodation, including support from NCBI employment services. During this period, the grievance investigation proceeded under company policy. The Complainant appealed the grievance outcome which issued on 14 February 2022. An appeal outcome issued on 21 April 2022. On 4 April 2022, the Respondent invited the Complainant to a meeting. Again, it noted that neither her doctor nor consultant ophthalmologist had proposed measures to facilitate her return. The Respondent requested that the Complainant provide any recommendations from NCBI employment support services.

The Complainant attended an occupational health assessment on 16 May 2022. The Physician’s report confirmed that the Complainant was severely visually impaired, at risk of falls, and unfit for work.

The Act requires an employer to take all reasonable steps unless they impose a disproportionate burden. In Marie Daly v Nano Nagle School [2019] IESC 63, the Supreme Court held that reasonable accommodation is governed by reasonableness and proportionality: an employer need not redesignate or create a different job. As stated in WRC case ADJ-00043962, “it is incumbent on the employee to put the employer on notice in relation to any disability and reasonable accommodation that may be required.”

The Respondent submits that it reasonably considered possible accommodations once notified of the Complainant’s medical issues. It maintained contact with her and allowed her ample recovery time while awaiting medical evidence. Medical professionals found her unfit to work and identified no accommodation enabling a return. The Complainant accepted the assessment findings and produced no contrary medical evidence. Neither the Complainant nor her doctors proposed an accommodation or provided a fitness certificate; she consistently reported deterioration. The Complainant never indicated readiness to return, proposed accommodations, or assisted in exploring alternatives.

The Respondent complied with employment equality law and followed a fair, transparent process. Despite welfare meetings, correspondence, informal discussions and occupational health reviews, the Complainant neither indicated a readiness to return to work nor proposed an accommodation that might assist her return. All assessments confirmed the severity of her condition and no foreseeable return in any capacity. The Respondent took all reasonable steps to accommodate the Complainant.

5. Evidence of Karl Moraghan

Mr Moraghan was the Store Manager at Ballyfermot Store. During the Complainant’s absence, he remained in contact with her and arranged occupational health assessments. They had a good relationship. Alongside numerous informal discussions, they held five or six welfare meetings and arranged two occupational health assessments.

The Complainant provided the company with one document about her condition: a July 2021 report from the Eye and Ear Hospital. The Complainant did not propose any accommodations to support her return to work, instead she sought that Tesco identify suitable measures. As he was not a medical practitioner, Mr Moraghan asked whether the NCBI could make recommendations and sought occupational health advice on possible reasonable accommodations. Occupational Health recommended an assessment by a consultant ophthalmologist. He did not arrange the referral because the Complainant agreed to do so herself. Mr Moraghan was not involved in the grievance investigations.

Under cross-examination, Mr Moraghan said he delayed referring the Complainant for an initial occupational health assessment to allow her time to recover. He reassured the Complainant, who was concerned about losing her job. He treated her absence as sickness and did not understand the seriousness of her condition until late February 2021. He did not know that her condition was classified as a disability until he reviewed the Eye and Ear Hospital report in July 2021. Although he acknowledged that Tesco had Disability Champions, he could not explain why the Complainant was not assigned a disability advocate at that stage.

6. The Law

Section 2 of the Act defines the term “Disability” includes: -

(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;

Section 85A (1) of the Act provides: -

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.

Subsection 16(1) of the Act provide: -

(1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

( a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

( b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed

Subsection (3) provides: -

( 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.

Subsection (4) provides: -

(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

Section 77(5)(a) of the Act provides: -

(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 occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

7. Deliberations

The Complainant is visually impaired, having suffered an aneurysm in June 2020. It is accepted that the Complainant has a disability for the purposes of the Act and that the Respondent was on notice of that disability. The Complainant submits that she was discriminated against on the disability ground as her employer failed to afford her reasonable accommodation as required at section 16 of the Act.

Time Limits

When considering a complaint under the Act, the Court must have regard to the statutory time limits set out at section 77(5)(a) of the Act. The Court’s jurisdiction in confined, in the first instance, to assessing alleged contraventions that occurred in the six-month period before a complaint was lodged to the WRC. As this complaint was lodged to the WRC on 9 March 2023, the relevant timeframe for consideration by the Court is the period from 10 September 2022 to 9 March 2023.

Should the Court find an act of discrimination with the cognisable period for the complaint, it is open to the Court to consider if any acts prior to that period are part of a continuum of discriminatory behaviour, which might, in such circumstances, be regarded as breaches of the Acts.

Burden of Proof

Section 85A of the Act provides that where an employee establishes primary facts from which discrimination may be inferred it then falls to the employer to prove that no such discrimination occurred. Where facts are proven and the Court regards them as being of sufficient significance to raise an inference of discrimination, the burden of proving the contrary shifts to the employer. The primary facts relied upon by the Complainant are as follows:

On 29 September 2022, the Complainant’s solicitor wrote to the Respondent by email to say that he had moved to a new practice and to request that the Respondent check its records and confirm if correspondence from him dated April 2022 was the most up to date position.  A copy of a letter dated 27 April 2022 was attached to the email. In the letter of 27 April 2022, the Complainant’s solicitor stated that the Complainant was fit to discuss a return to work. He requested that the Respondent consider how it intends to meet its obligations under the Act to provide the Complainant with reasonable accommodation and to provide details of what, if any, efforts it has made in relation to that matter.

On 10 October 2022, the Complainant’s solicitor wrote again seeking an update. By email dated 12 October 2022, the Respondent replied to say the correspondence was passed to the Respondent’s legal team who would be in touch. On 24 January 2023, the Complainant’s solicitor wrote once again to say that he had not received an update since their email of 12 October 2022. He requested confirmation about (a) the Complainant’s employment status, (b) whether her position remained available for her to return to, and (c) what accommodation could be made to facilitate her return to work.  The Complainant’s solicitor received no reply. 

On 9 March 2023, the Complainant lodged a complaint to the WRC stating that the Respondent had failing to discharge its obligation in relation to assessing her requests for reasonable accommodation.

The facts in this case are that in the six-month period before lodging a complaint to the WRC, the Complainant’s solicitor wrote to the Respondent on three occasions seeking updates about what efforts had been made to explore accommodations that might facilitate her return to work. The Respondent accepts that during that time it did not reply to the Complainant’s solicitor about the matters raised in that correspondence, nor did it engage directly with the Complainant before she lodged her complaint under the Act to the WRC. The Respondent’s failure to consult with the Complainant’s solicitor, or to engage directly with the Complainant on the queries raised, does not, of itself, amount to discrimination under the Act, however, the lack of engagement is in the Court’s view sufficient to suggest an inference of discrimination. In light of these facts, the Court is satisfied that the Complainant has established a sufficient basis from which discrimination may be inferred. As a result, the burden shifts to the Respondent to prove that it did not contravene the Act by failing to provide reasonable accommodation or properly assess the Complainant’s condition.

Can the Respondent rebut the inference of Discrimination?

The Respondent submits that, based on the information available to it, it took all reasonable steps to facilitate the Complainant’s return to work. It contends that her medical condition had deteriorated to the point that the medical evidence indicated no adjustment or accommodation would enable her to resume her role. It further submits that, despite multiple informal discussions and welfare meetings and two occupational health assessments, the Complainant neither indicated that she was ready to return to work nor proposed any reasonable accommodation.

The relevant facts in this case are as follows:

In April 2021 the Complainant was assessed by an occupational health physician. Although there was some dispute about the delay before the company’s occupational health provider assessed her, the physician concluded that she was unfit for work. The report described the prognosis for a return to her own occupation as “poor, because of poor vision” and stated that she was “unlikely” to resume her duties “because of long term visual impairment”. It also recorded that there were “no opportunities to improve care pathways” at that time.

Following that report, the Respondent invited the Complainant to a review meeting and advised that her position could not remain open. The Complainant’s solicitor replied that a return to work was unlikely unless accommodations were made for her disability and asked whether any such measures had been investigated.

Thereafter, the Respondent engaged with its occupational health provider, although the precise query put to the provider is unclear. On 16 June 2021, the occupational health physician’s replied and reiterated that the Complainant was unfit for work. The response did not address possible accommodations, but stated that “A Consultant Ophthalmologist review would be appreciated bef…assign her for any job” (sic). The Respondent did not refer the Complainant to a consultant ophthalmologist, as the parties agreed that the Complainant would consult her own specialist, which she did.

In August 2021, the Complainant informed the Respondent that her consultant ophthalmologist had made no recommendations to support a return to work. She stated that it was for Tesco to progress that matter. Her Solicitor advised that it was neither appropriate nor reasonable to expect the Complainant’s consultant to evaluate which work she could or could not perform. In light of the occupational health physician’s request for a consultant’s assessment and the Complainant’s response, no adequate explanation was provided for the Respondent’s failure either to refer the Complainant to a consultant ophthalmologist at that point, or to seek further guidance from occupational health physician on the next steps.

In September 2021, the Complainant agreed to engage with the NCBI Employment Support Service to identify reasonable accommodations that might support her return to work. A follow-up meeting was proposed for 30 November 2022. While an investigation into the Complainant’s grievance progressed during this time, no evidence was presented of any further engagement by the Respondent about possible accommodations until 4 April 2022, when it sought details of any recommendations from the Complainant’s medical consultant or the NCBI Employment Support Service.

On 27 April 2022, the Complainant’s solicitor advised that she was fit to discuss a return to work and requested the Respondent to explain how it intended to meet its obligation under the Act to provide reasonable accommodation. The solicitor also sought details of any steps the Respondent had already taken in that regard. Inexplicably, at this point, the Respondent informed the solicitor that it would deal with the Complainant directly.

In May 2022, the Respondent requested an up-to-date medical report from the Complainant and advised her that it would refer her back to occupational health . The Complainant attended an occupational health assessment on 16 June 2022, following which the occupational health physician issued a report entitled “Addendum”, stating:

“(1) She is unfit for work. (2) She has very poor blurred vision in her right eye. In her left eye she can only see hand movements at a close distance. (3) She is severely impaired visually. (4) Follow up with her ophthalmologist on a regular basis. (5) Registered with NCBI. (6) Visual impairment and risk of fall and accidents. (7) Accident risk. (8) With own GP. “

The medical report confirmed that the Complainant remained unfit for work. The report did not address whether any accommodation might support the Complainant’s return to work. As the referral letter was not provided to the Court, it is unclear what advice had been sought. Thereafter, on the evidence presented, the Respondent did not engage any further with the Complainant and did not provide any updates to her solicitor, despite several communications from him.

Section 16 of the Act defines the nature and extent of an employer’s obligations towards an employee with a disability. Its primary obligation is to take appropriate measures, or provide “reasonable accommodation”, to enable the employee to work on an equal basis with others. That duty is limited by what is reasonable and proportionate, including whether the measures would impose a disproportionate financial burden on the employer.

In Nano Nagle, McMenamin J explained the requirements imposed on employers by section 16 in relation to the reasonable accommodation of employees with disabilities:

“The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee. It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment is reasonable accommodation in the job, or whether, in reality, what is sought in an entirely different job. Section 16(1) of the Act refers specifically to "the position", not to an alternative and quite different position.”(paragraph 89)

McMenamin J further noted:

“Once consultation, or other necessary steps for compliance, have been taken, an employing entity may have to ask itself the ultimate question whether, having explored the modes of accommodation, and if, prudently having consulted with an employee, the position, as defined in s.16(1), is, in fact, capable of adaptation so as to accommodate that claimant, and whether the claimant would be capable of performing that function thus adapted. But it is that ‘position’ or job, not another one.” (paragraph 107)

The Respondent places considerable emphasis in its submission that the Complainant’s prolonged absence was managed reasonably, in accordance with fair procedures and best practice. The Court notes that the Respondent conducted a comprehensive investigation into the Complainant’s grievance and notified her of the outcome by letter dated 14 February 2022. The Court notes that in the period between June 2020, when the Complainant’s absence from work commenced, and March 2023, when she referred her complaint to the WRC, the Respondent did engage with the Complainant at times about her fitness to attend work. However, no adequate explanation was given for its failure during that period to meaningfully engage with her requests for a workplace assessment and reasonable accommodation.

The Complainant’s evidence was that she was neither sick nor ill; rather, she had a disability that prevented her from attending work. She asked the Respondent to explore reasonable accommodations that might enable her to perform some of her former duties as a Customer Assistant or, alternatively, to identify another suitable role. The duty to provide an employee with a disability with reasonable accommodation, does not extend to creating a new job that the employee can perform and Respondent was under no obligation to find the Complainant an alternative role.

An employer’s primary obligation towards an employee with a disability is to take appropriate measures to enable that employee to work on an equal basis with others. Although an employer is not required to create a new job, it must explore modes of accommodation that may enable the employee to perform the existing role. The test is one of reasonableness and proportionality, and the employee’s needs must be assessed individually.

It is possible that no accommodation could have enabled the Complainant in this case to return to work. Nevertheless, the Court finds that the Respondent did not adequately discharge its obligations under section 16 of the Act. The Respondent relied heavily on the Complainant’s failure to identify, discuss or recommend possible measures that might assist her return to work. While the Complainant’s stance was less than helpful, the onus remained on the employer to explore what accommodations were available.

The Complainant was absent from work since June 2020. She received a formal diagnosis of her disability in July 2021. The Court was provided with extensive correspondence from the Complainant’s solicitor asking the Respondent to initiate a process to discharge its obligations under section 16 of the Act. The Respondent delayed referring the Complainant for an initial medical assessment, and the April 2021 occupational health report did not address whether any accommodation could support a return to work. No adequate explanation was provided to explain why the Respondent failed to refer the Complainant to a consultant ophthalmologist, as recommended by the occupational health physician in June 2021. When the Complainant was reassessed by occupational health in June 2022, the physician’s report, put in evidence before the Court, again failed to address whether any accommodation could support her return to work. The Respondent’s submission that all medical practitioners agreed that no adjustment or accommodation could enable the Complainant to return to work does not withstand scrutiny. The medical reports before the Court did not meaningfully address whether accommodations or adaptations could assist her in resuming the role of Customer Assistant. It is not clear what precise queries were put to the occupational health provider by the Respondent in relation to accommodation measures. No evaluation of the Complainant’s duties as a Customer Assistant was presented to the Court and, from the evidence presented, the Respondent carried out no workplace assessment.

On the evidence presented, the Respondent did not engage with the Complainant after the June 2022 occupational health assessment and did not respond to subsequent requests for an update from her solicitor. Although an employer is not legally required to consult on possible accommodation, the Respondent produced no evidence that, after the June 2022 assessment, it made any effort to identify possible accommodations and thereby discharge its statutory obligations.

The Act requires an employer to take appropriate measures to enable a person with a disability to participate or advance in employment, unless those measures would impose a disproportionate burden.In this case, the Court finds that the Respondent failed to explore adequately what measures might have enabled the Complainant to return to work as a Customer Assistant.

The Court finds that the Respondent contravened the Act by failing to fulfil its obligations under section 16.

In determining this appeal, the Court has considered all the evidence adduced and carefully examined the parties’ submissions and extensive supporting documentation. The Court finds that the Complainant has established a prima face case of discrimination on the disability ground. Based on the facts presented, the Court finds that the Respondent has failed to rebut that inference of discrimination.

Redress

The Court considers that the appropriate redress is an award of compensation. Any sanction must be “effective, dissuasive and proportionate” as determined in Von Colson & Kamann v. Land Nordrhein Westfalen [1984] ECR 1891. In deciding on the award, the Court has taken account of the impact of the Respondent’s actions on the Complainant and the timeframe over which the discrimination occurred. The Court orders that the Respondent pay to the Complainant the amount of €20,000, which it considers to be a just and equitable award for the effects of discrimination on the ground of disability.

9. Determination

The Court finds that the complaint of discrimination on the disability ground is well founded. 

The Court directs the Respondent to pay to the Complainant the amount of €20,000 for the effects of discrimination on the ground of disability.

The decision of the Adjudication Officer is varied accordingly.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
AL	______________________
09/10/2026	Deputy Chairman

NOTE

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