Complainant

Respondent

Anonymised Parties

Landscaper

Landscaping Company

Representatives

Self-Represented

Mr. Paul McGlynn, HRS Consultants

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00070034-001

17/03/2025

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

CA-00070034-002

17/03/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00070034-003

17/03/2025

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

CA-00070034-004

17/03/2025

The Complainant commenced employment on 28th October 2022. At all relevant times the Complainant role was described as a “grounds maintenance operative”. The Complainant was a permanent, member of staff, in receipt of an average weekly payment of €464.40. While the Complainant remained in employment on the date of referral of the present complaints, he resigned shortly thereafter.

On 17th March 2025, the Complainant referred the present complaints to the Commission. Herein, he alleged that the Respondent failed to make a reasonable accommodation for a pre-existing disability in accordance with their obligation under equality legislation.  In denying these allegations, the Respondent submitted that the Complainant did not disclose his disability at the relevant time, they denied that the Complainant required accommodation and, without prejudice to the foregoing, they submitted that an accommodation was offered and accepted.

A hearing in relation to this matter was convened for, and finalised on, 3rd March 2026. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of his complaint, while a managing director of the Respondent gave evidence in defence. All evidence was given under oath or examination and was opened to cross examination by the opposing side.

In circumstances whereby the present decision will involve a consideration of the Complainant’s medical history, I have utilised my discretion to anonymise the decision in its published form.

The Complainant commenced employment with the Respondent on 28th November 2022.  At all relevant times the Complainant’s role was described as that of “grounds maintenance operative”, a role which necessitated travel to various local sites. In evidence, the Complainant stated that he performed well in this role and was promoted to supervisor within a year of commencement.

In July 2023, the Complainant suffered a serious workplace accident requiring hospitalisation. During treatment, extreme hypertension was discovered, prompting further cardiac investigations. In due course, the Complainant received a diagnosis of cardiomyopathy. Although signed off as fit to work while investigations were ongoing, the Complainant was advised to avoid excessive fatigue and stress. The Complainant kept the Respondent informed of these medical developments, though detailed specifics were initially unavailable in the absence of a formal diagnosis.

In February 2025, the Complainant was assigned to a site requiring significant commuting to and from site. While the Complainant’s role usually involved a certain amount of commuting, this particular contract was located several hours away from the Complainant’s base and led to a significant increase in his working day. In circumstances whereby the excessive travel contributed to overall fatigue, the Complainant became concerned regarding his cardiac condition. In these circumstances, the Complainant issued an email to several members of the Respondent company on 19th February 2024. In this correspondence, the Complainant requested two nights of local accommodation near the site as a reasonable accommodation in order to prevent an exacerbation of a pre-existing medical condition.

Despite the serious nature of this communication, the Respondent failed to respond for a period of several days. When a reply did issue, the same queried the nature of the condition and denied any prior awareness on the part of the Respondent. Rather than addressing the request, the Respondent placed the onus on the Complainant to demonstrate the nature and extent of the disclosed condition. In evidence, the Complainant stated that the kept the Respondent aware at all times of the nature and extent of his issues, and that any lack of knowledge on their part arose from their failure to properly investigate the issues raised.

The Complainant subsequently provided formal notification of the medical issue and expressed disappointment at the lack of appropriate action. Throughout this process, the Complainant remained obliged to travel excessive distances, experiencing ongoing fatigue and distress. The request for two nights of overnight accommodation per week was dismissed, and the Respondent continuously requested further information until the contract concluded and the commuting issue became moot.

In summary, the Complainant submitted that he suffered from a serious cardiac condition which was disclosed at the relevant time. The Complainant asserted that he requested a reasonable accommodation to prevent an exacerbation of this condition in line with medical advice.  He stated that his request was not unduly onerous and that the Respondent failed to even consider the same and instead focused on various procedural aspects. In these circumstances, the Complainant submitted that his complaint should be deemed to be well founded.

In denying the allegations raised by the Complainant, the Respondent denied that they were aware of any medical condition at the relevant time. They further submitted that the Complainant did not provide any medical basis as to his requirement for any form of accommodation. Finally, they submitted that an accommodation was offered and accepted.

In this regard, the Respondent accepted that the Complainant suffered an injury in the course of duties in July 2024. The Respondent further accepted that a series of text message communications occurred between the Managing Director of the Respondent and the Complainant at the relevant time. The Respondent submitted that these messages related almost exclusively to the physical injuries suffered by the Complainant. Although the Complainant mentioned high blood pressure in passing, no reference was made to cardiac issues or diagnoses.

Thereafter, the Complainant provided a medical certificate confirming fitness to work. This certificate did not suggest or reference any accommodations or issues of any description. Shortly thereafter, the Complainant duly retuned to work without any further incident.

The Respondent accepted that the Complainant was subsequently assigned to a project requiring a degree of commuting. The Respondent submitted that the assignment was not of excessive duration and that the Complainant received allowances in respect of the travel time. The Respondent further submitted that the assignment was relatively brief in duration and that the Complainant was to be assigned more local duties thereafter.

The Respondent accepted that an email was received from the Complainant in February 2025 requesting overnight accommodation on the grounds of an apparent medical condition. In evidence the Managing Director of the Respondent stated that this constituted the first notification of any description of this cardiac condition. Furthermore, the Respondent was not previously advised of any required accommodations concerning commuting or fatigue.

The Respondent stated that a duty of care was exercised to investigate the matter, leading to a request for further medical information from the Complainant at the relevant time.

Notwithstanding the foregoing, the Respondent denied failing to provide accommodation. Upon the Complainant raising concerns regarding fatigue from the commute, the Respondent arranged transport for the Complainant both to and from the site for the remainder of the short contract. They submitted that the Complainant accepted this arrangement, thereby establishing that an accommodation was provided and accepted. In evidence, the Respondent referred the final contemporaneous correspondence on this issue whereby the Complainant accepts the accommodation offered and thanked the Respondent for their assistance.

Having regard to the foregoing, the Respondent submitted that no prior awareness existed regarding medical difficulties requiring accommodation. Once the Complainant stated that he required assistance, an accommodation was offered and accepted. The Respondent further submitted that they exercised their duty of care in ensuring that the matter was subject to further investigation. Having regard to the foregoing, the Respondent submitted that no breach of the Act occurred and that the present complaint should fail.

CA-00070034-004 – Complaint under the Employment Equality Act

Regarding the present dispute, the Complainant has alleged that the Respondent failed to make a reasonable accommodation to prevent a potential exacerbation of a pre-existing medical condition. By response, the Respondent denied any awareness of the nature and extent of any such pre-existing medical condition at the relevant time. In addition to the foregoing, the Respondent submitted that accommodations were indeed provided for the Complainant once requested and that the present complain has no basis in fact or law.

In this regard, Section 16(3)(b) of the Act provides that,

“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.”

In the case of Nano Nagle School -v- Daly [2019] IESC 63, the Supreme Court discussed an employer’s duty to provide such reasonable accommodation. Here the Court held as follows,

“… s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself.”

In the matter of Cunningham v Irish Prison Service [2020] IEHC 282, Barr J held that,

“Justice requires that the person suffering from the disability be given the chance to make his/her case that they could perform the functions required of them if reasonable accommodation were made for them, which was not unduly burdensome to the employer and did not impair the operational capacity”

In the matter of Humphries v Westwood Fitness Club [2004] 15 E.L.R. 296, the Labour Court held that in assessing the requirements for a potential reasonable accommodation, an employer would, “normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity”.

The Court went on to state that,

“It is generally accepted that the nature and extent of the enquiries which an employer should make will depend on the circumstances of each case and the questions which the employer is considering”.

At the hearing of the matter, significant portion of the hearing concerned various matters of dispute between the parties. Nonetheless, the core matter for consideration under the legislative provision is whether the Respondent was aware of a disability from which the Complainant suffered, and whether reasonable accommodations were provided to enable the Complainant to continue in employment.

While the parties remained in dispute in relation to many matters, it is common case that in February 2025, the Complainant issued an email to the Respondent stating that excessive commuting was causing him to experience fatigue, and that this created a concern for him regarding  the potential exacerbation of a pre-existing medical condition. When the Complainant suggested two nights of overnight accommodation to assist with the matter, the Respondent counter offered that the Complainant avail of transport with other employees travelling to the site, thereby removing the requirement to drive and consequently reducing the fatigue accumulated.

While the parties remained in dispute regarding the actual or constructive knowledge on the part of the Respondent regarding the pre-existing medical condition, it is again common case that the Complainant availed of the offer of transport to the site in question and was in a position to continue in employment on this basis.  In this regard, it cannot be held that the Respondent failed to provide a reasonable accommodation, as it is apparent that at all times the Complainant was enabled with access to employment. In essence, it appears that the Complainant became concerned regarding the exacerbation of a pre-existing medical condition and on this basis suggested an accommodation. On receipt of the same, the Respondent countered with an alternative form of accommodation. Thereafter, the alternative form of accommodation was accepted by the Complainant and the employment continued thereafter.  

Having regard to the foregoing, I find that the Respondent did not breach their obligations under Section 16(3)(b) referenced above, and that consequently the Respondent did not discriminate against the Complainant.

CA-00070034-001 – Complaint under the Payment of Wages Act

Regarding this complaint, the Complainant alleged that the rate of allowances paid to him were unilaterally reduced by the Respondent. By response, the Respondent accepted that the rate of certain allowances was reduced for all staff members, including the Complainant, in line with advice from Revenue. In order to ensure that affected employees suffered no actual deduction in their remuneration, a corresponding increase in basic pay was arranged.

While the foregoing resulted in the Complainant receiving a slightly reduced net pay, as the wages element of his remuneration was subject to income tax, it is apparent that the Complainant suffered no deduction in wages during the cognisable period for the purposes of the present complaint. Having regard to the foregoing, I find that the complaint is not well founded.

CA-00070034-002 – Complaint under the Terms of Employment (Information) Act

Regarding this particular complaint, the Complainant has alleged that the above-mentioned amendment to his remuneration was not issued to him in writing, and as such contravened Section 5 of the above-mentioned Act.

By response, the Respondent accepted that the Complainant did not receive an amended contract in relation to the foregoing, but submitted that the Complainant suffered no detriment, and in fact accrued a benefit, as a result of the amendment.

Having regard to the foregoing, the Respondent accepted that they were in breach of Section 5 of the Act and in these circumstances, the complaint is deemed to be well-founded.

CA-00070034-003 – Complaint under the Organisation of Working Time Act

Regarding this complaint, the Complainant alleged that he did not receive a full daily rest period in accordance with the Act. He submitted that as a consequence of his increased commenting, his working hours increased to the extend whereby the Section 11 of the Act was contravened.

In this regard, Section 11 of the Act provides as follows,

“An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.”

The relevant section of the Complainant’s contract provides that,

Your normal working week will be 47.5 hours. You will be required to be flexible in this position and to carry out tasks that may be reasonably required of you”.

Regarding place of work, the Complainant’s contract provides that,

“The Company reserves the right to assign you to carry out your work, either on a temporary or permanent basis, at other locations in Ireland as the Company reasonable requires from time to time”.

While a degree of confusion existed as to the Complainant’s correct home address, it is apparent that the duration of travel from the most recent address provided by the Complainant, to the site he was expected to attend in February 2025, the was just over 2.5 hours in each direction. Assuming that the Complainant worked a full day of eight hours once he arrived at site, the entire duration of the working day, including the period spent travelling to the site came to over 13 hours.  In these circumstances, it is apparent that if the time spent travelling to the place of work is deemed working time for the purposes of the Act, the Respondent will be in breach of Section 11.

Section 2(1) of the Act and provides: -

“working time’’ means any time that the employee is—

(a) at his or her place of work or at his or her employer’s disposal,

and

(b) carrying on or performing the activities or duties of his or her work”

In the matter of Breffni Carpentry Services Ltd and Denis Solodounkovst DWT0816, the Labour Court held that,

“This definition covers time during which an employee is actually carrying out the activities of his or her work. Accordingly, the Court is satisfied that only the hours which the Complainant spent at the workplace, and not travelling time, can be regarded as working time.”

In the matter of Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA, (C266/14), commonly referred to as TYCO, the ECJ held as follows,

“…point (1) of Article 2 of Directive 2003/88 must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, in which workers do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes ‘working time’, within the meaning of that provision.”

In the matter ofNoonan Services v Lilita Abzinova DWT1677 the Labour Court notedthat,

“…time spent travelling to and from work at the start and end of the working day is not normally considered working time. There are circumstances where such travel may become working time. The CJEU has set out one such occasion in the Tyco case referred to above. However the circumstances between that case and this are not at all similar. In that case the complainant had no fixed base as it had been closed for efficiency reasons by Tyco. Accordingly the complainant, whose work required him to travel to customer sites to carry out work as and when required, commenced work as soon as he left his home to travel to his first customer each day. Likewise he travelled home after he finished with his final customer. The distances he travelled were variable but quite extensive. Accordingly he had no certainty regarding his start or finish time as he was not finished work until he returned to his base which was his home.”

Having regard to the agreed factual matrix, I find that the present matter is more analogous with that set out in Noonan Services set out above. While the Complainant’s place of work would vary from contract to contract, it is the case that it is fixed for the duration of the contract. This can be contrasted with Tyco, where the employees would travel between various appointments throughout the day, with no fixed starting and finishing point.  It is also noted that the Complainant’s contract of employment, in addition to the custom and practice within the Respondent company, if not the wider industry, is that travel time, while subject to various expense claims, is not considered working time.

Having regard to the foregoing, I find that the travel time does not constitute working time and that the complaint is duly deemed to be not well-founded.

CA-00070034-004 – Complaint under the Employment Equality Act

I find that the Complainant was not discriminated against by the Respondent

CA-00070034-001 – Complaint under the Payment of Wages Act

I find the that complaint is not well-founded.

CA-00070034-002 – Complaint under the Terms of Employment (Information) Act

I find that the complaint is well founded.

Regarding redress, I note that the Complainant did receive a comprehensive suite of signed statements at or near the commencement of his employment. While the Respondent has breached Section 5 of the Act, in failing to provide a signed statement of employment, I find that this breach is relatively minor in the circumstances.

Having regard to the foregoing, I award the Complainant the sum of €350 in compensation.

CA-00070034-003 – Complaint under the Organisation of Working Time Act

I find that the complaint is not well-founded.

Reasonable Accommodation, Access to Employment, Tyco, Working Time