ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000765

Complaint(s)/Dispute(s) for Resolution:

The complaint under the Unfair Dismissals Acts was withdrawn at the hearing.

At the outset the claimant’s representative invoked the provisions of Section 41 and submitted that by virtue of the non attendance of the owner of the respondent company the claimant was left at a distinct disadvantage - it emerged that while a postponement had been sought by the respondent on the grounds that the owner and his witness were out of the country on the date of the hearing , the postponement request was withdrawn by Peninsula Business Services on the 20^th.June.The claimant’s representative asserted that arising from the non attendance of any witness on behalf of the respondent company , the claimant was prejudiced from the outset – instructions could not be obtained in the absence of said witnesses and the opportunity to examine the respondent’s witnesses was denied.

Following an adjournment , it was decided to proceed with the hearing in light of the withdrawal of the postponement request from the respondent’s representative.

Date of Adjudication Hearing: 21/06/2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The claimant contended that she was discriminated against by the respondent on the grounds of disability in relation to her dismissal and failure to provide reasonable accommodation .

It was submitted that the relevant disability was Clinical Depression arising from the burning to the ground of her family home in the early hours of the morning of the 22^nd.Jan.2015 , while the claimant, her husband and her children slept.

The claimant commenced working as a Sales Fitting Executive on a zero hours contract on the 27th.Aug.2012 – it was submitted that on the 27th.Jan 2015 the claimant was forced to go on sick leave arising from illness associated with her house fire .It was submitted that the relevant medical certification was furnished on the 27^th.Jan.2015 and the respondent was well aware of the tragic personal circumstances   and was “ on notice of the associated developing disability”. Communication between the claimant and the manager was by telephone or text and the owner sent the claimant a text expressing sympathy about the fire.It was submitted that this was the only communication between the owner and the claimant between January and May2015.

During the claimant’s illness she was contacted by the manager to ascertain her availability to return to work or cover shifts when short staffed.It was contended that there was never any enquiry into the claimant’ s health status.The claimant was contacted by text on the 20^th. and 22^nd.May 2015 to discuss her availability for the summer period .

It was submitted that the claimant attended the shop in or around the 23^rd.May 2015 and was asked to take up a full time position , working a 40 hour week in addition to covering staff holidays.She was advised that if she was unable to agree to those terms , the respondent would be forced to find someone else.The claimant did not give an answer on that date but sent a text message on the 30^th.May 2015 indicating that she would not be available for work as there was “so much going on”.The claimant received a text message on the 1^st.June indicating her P45 would be in the post.She replied on the 2^nd.June indicating her confusion and explained that she had not resigned her position – she received her P45 thereafter with her cessation noted as the 31^st.May 2015.Following the submission of her complaint to the WRC the claimant received an undated letter fom the employer stating that there was a position available – there was no reference to the claimant’s illness in the letter.

It was submitted that the claimant’s GP diagnosed the claimant as suffering from severe depression arising from the traumatic events of the January 2015 – it was contended that the employer should have engaged with her to identify what steps should have been taken to accommodate her disability and agree appropriate work arrangements as opposed to treating dismissal or replacement as the first resort.It was submitted that had those steps been taken to accommodate her illness, the claimant ‘s recovery and rehabilitation would have been enhanced and she would have been in a better position to take up employment.

It was submitted that any assumption about the ability of an employee to continue in employment due to their disability in the absence of a medical assessment , will render the dismissal a discriminatory dismissal.It was contended that Section 16(3) requires the respondent to proactively engage with the claimant on the right kind of accommodation for her disability.The following authorities were invoked in support of the claimant’s arguments about the obligations of employers under the Act – Humphries v Westwood Fitness Club [2004] ELR 296 ; EDA 30/2014 and Nano Nagle School v Marie Daly [2015]IEHC 785.

It was advanced that the essential submission on the burden of proof in this case was that the respondent was relying on mere denial of dismissal and a reconstruction of what occurred.” ICTS (UK)LtdvMagdi Ahmed EDA3/2004 , Nevins v.Portroe Stevedores[2005]16 E.L.R.282 and Bartoon v Investec Henderson Crosthwaite Securities Ltd[2003] 1 I.C.R.1205 were invoked in support of this position.

With respect to Disability discrimination and reasonable accommodation it was submitted that

The Complainant has suffered discrimination on the disability ground (prohibited in Section 6(2)(g) of the Act) and in contravention of Section 8 of the Act insofar as she was denied appropriate facilitation and accommodation of her ill-health.

It was advanced that Section 6(1)(g) of the Act provides that discrimination on the disability ground occurs where a person with a disability is treated less favourably than a person without a disability or a person with a different disability. If the Complainant were not disabled, the failure to accommodate (the need for accommodation) would not have arisen.

It was submitted that the duty to provide special treatment or facilities, for which the Complainant contends, is derived from section 16 of the Act. It is submitted that the facts in this case suggest an attitude of not knowing or not seeking to establish the particulars (and prognosis) of the Complainant’s condition. In these circumstances the assessment of the Labour Court in A Technology Company v A Worker EDA0714 are it was submitted instructive -

“Article 2 of Directive 2000/78 EC on a Framework for Equal Treatment in Employment and Occupations provides that the principle of equal treatment means that there shall be no direct or indirect discrimination whatsoever on, inter alia, grounds of disability (emphasis added). It is well settled that in interpreting national law the Court must do so in light of the wording and purpose of the Directive so as to achieve the result envisaged by the Directive (see Marleasing S.A. v La Commercial Internacional de Malimentacion S.A. ECR 4135). It is therefore necessary for the Respondent to prove on the balance of probabilities that its decision not to offer the Complainant employment was in no sense whatsoever based on his disability. 

When the burden of proof shifts to a Respondent there are a number of factors, which should be taken into account in deciding if that burden has been discharged.

Firstly, since the facts necessary to prove an explanation can only be in the possession of the Respondent, the Court should expect cogent evidence to discharge the burden of proof (see Barton v Investec Henderson Crosthwaite Securities [2003] IRLR 332 and the decision of the Court of Appeal for England and Wales in Wong v Igen Ltd and others IRLR 258). 

Secondly, the requirement to establish that there was no discrimination whatsoever means that the Court must be alert to the possibility that a person with a disability may suffer discrimination not because they are disabled, per se, but because they are perceived, because of their disability, to be less capable or less dependable than a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution (see Nevins, Murphy, Flood v Portroe Stevedores [2005] 16 ELR 282). 

Finally, in Wong v Igen Ltd and others Peter Gibson LJ considered the scope which should be ascribed to the notion of “no discrimination whatsoever”. He held that if the protected factor or characteristic is more than a “trivial influence” in the impugned decision, a claim of discrimination will have been made out. That is a highly persuasive authority which the Court readily adopts.

It was submitted that Section 16(3)(a) of the Act provides that a person with a disability is not to be regarded as other than fully capable of carrying out the duties of a post if, with the assistance of special treatment or facilities, they would be fully capable of carrying out those duties. Section 16(3)(b) then goes on to impose an obligation on employers to do what is reasonable to provide such treatment or facilities.

Reference was made to An Employer v A Worker (Mr. O) ADE/04/2 Det. No. 0419 where the Labour Court adopted the following reasoning based, though it is, on the equivalent (differently worded) English provision:

“In Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566 the EAT for England and Wales considered an appeal from the decision of an Employment Tribunal in which it was held that the obligation imposed on an employer by section 6(1) of the Disability Discrimination Act 1995 (which corresponds to S16 of the Act) included an obligation to carry out a proper assessment of the disabled employee's needs. In the head note of the report the following statement of the law appears:

A proper assessment of what is required to eliminate a disabled person's disadvantage is a necessary part of the duty imposed by S.6(1), since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done. The submission that the tribunal had imposed on the employer an antecedent duty which was a gloss on s.6(1) could not be accepted. The making of that assessment cannot be separated from the duty imposed by s.6(1), because it is a necessary precondition to the fulfilment of that duty and therefore part of it…”

It was submitted that A School v A Worker EDA 30/2014 (a decision upheld by Noonan J. in the High Court by way of appeal on a point of law - Nano Nagle School v Marie Daly [2015] IEHC 785) was of further relevance – the claimant was a special needs assistant who also had a qualification in nursing. After suffering paralysis in an accident and being confined to a wheelchair, she was assessed by two experts on behalf of the respondent with a view to returning, if possible, to work. She described her work as follows:

“… it primarily involved the provision of personal care and assistance to the pupils who attend the school, all of whom have disabilities. The work involved accompanying the children to assembly and then escorting them to the class room in which she worked. She read stories which were a tool in the education of the children and she undertook table top work. The Complainant also undertook some nursing duties, such as attending to children who might fall and in attending to those who required peg-feeding. The Complainant also performed some secretarial duties on a part-time basis.”

It was submitted that it appears the secretarial function was not insignificant, being 3 hours per day, 5 days per week. Whilst the complainant never actually pursued the option of continuing in the role of secretary, it appears to have been accepted that this role was to cease together with the SNA role due to the disability

The employer described the role as follows:

“It is a caring role and staff are trained to provide feeding, toileting and other care activity to the pupils while at school. Many of the children present challenging behaviour and it may not be safe to leave them in a room with others. In such cases the SNA is required to remove the child to a safe environment. In Ms M’s opinion the work of an SNA requires every faculty that an able bodied person has. Children often throw themselves on the ground and the SNA may have to pick them up. One class caters for pupils ranging in age from 13 to 19. They are physically strong and caring for their needs can result in injuries to staff. Since September of last year 10 to 12 SNAs have suffered injuries at work.”

A risk assessment was conducted which set out a table of functions the complainant could not do together with certain recommendations.

“Table 1 describes the duties that would be suitable to [Complainant]. It is clear that she is limited from assisting children with physical care needs. Safety is the main concern for [Complainant], staff and children. Both classes had children who can act out and need hands on intervention and / or escorting. This suggests that these classes would need two physically able SNAs to assist with these children. [ … ]

The recommendation is that [the Complainant] could act as a floating SNA. The risk assessment/care needs sheet (appendix 2) used to assess children should be used to identify children that [the Complainant] could work with. She can perform SNA duties with children who need verbal or physical prompts. It is not recommended that [the Complainant] work with children who act out physically.

I hope [the Respondent] have the resources to support [the Complainant] as it is evident that she is very motivated to return to work.”

It was submitted that an employer cannot afford to be unacquainted and certainly cannot afford to make assumptions as to where the limits lie.

The Court engaged in an extensive and careful analysis of the preamble recitals to the Directive. Indeed it is arguable that the decision turns entirely on the phrase ‘essential functions’ contained in recital 17 of the Directive.

Recital 17 of the preamble to the substantive provisions in the Directive states:

1. “This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform the essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.” (emphasis added)

It was advanced that the Court said:

“[T]he law does not require an employer to employ a person in a position the essential functions of which they are unable to perform. But that principal is without prejudice to the obligation to provide reasonable accommodation where it is needed. That may involve making adjustments in the allocation of tasks amongst the workforce so as to assign to a person with a disability those tasks that he or she can perform while allocating tasks beyond their capacity to others. But that duty is not unlimited. In that sense the reference to the ‘essential tasks’ of a position can be understood as referring to the essential tasks of a reorganised position. It is true that reorganising the work associated with a particular job may involve a significant change in the contractual position of the parties. But altering working hours also involves a considerable interference with the legal relationship between employer and employee, as was recognised by Advocate General Kokott in HK Denmark, at paragraph 59 of her opinion.

However , the duty on an employer must remain within the boundaries of what is reasonable and proportionate, including the financial implications that may be involved. The question of whether a disabled person has the capacity to perform the essential task associated with a position obviously goes to the question of reasonableness and proportionality. Moreover, if the requisite reallocation of tasks involves the employment of additional staff, it goes to the question of cost. The standard to be applied is that of a reasonable employer who understands his or her legal duty and wishes to uphold the right of a disabled employee to work and earn a livelihood.

[…]

The duty imposed on an employer to provide reasonable accommodation carries with it a concomitant obligation to make an informed and considered decision on what is or is not possible, reasonable and proportionate. If all of the options that may be available are not adequately considered the employer cannot form a bona fide belief that they are impossible, unreasonable or disproportionate. As was pointed out by this Court in Humphries v Westwood Fitness Club and in A Worker v An Employer a failure to adequately consider all available options on how a disabled person can be accommodated can amount to a failure to discharge the duty to provide reasonable accommodation However. Those cases also indicate that an enquiry in that regard can only be regarded as adequate if the affected employee is afforded an opportunity to influence the decision that the employer ultimately makes.”

After pointing to the relevant authorities for role adjustment, the Court then said:

“The duty to provide reasonable accommodation to people with disabilities is imposed so as to diminish as far as possible the relevance of those differences so as to achieve for the disabled person substantive equality and to assist their integration in the working environment. The law in relation to disability requires a measure of positive discrimination in that an employer may be obligated to treat a disabled worker more favourably that an able-bodies person.

The provision of reasonable accommodation is a means by which people with disabilities can enjoy and exercise their fundamental human right to work and earn a livelihood. The duty which the UN Convention on the Rights of Persons with Disabilities, Article 5 of Directive 2000/78/EC and s.16(3) of the Act imposes on employers is a means to that end. While s.16(4) of the Act and recital 20 of the Directive are illustrative of the type of measures that can be taken they do not provide an exhaustive list.”

Beyond Westwood, the critique of the employer’s response

2. Ultimately the Westwood analysis had been satisfied in Nano Nagle School to the extent that the employer took steps to understand the disability and went on to consider, to a considerable extent, how to facilitate it. It had not gone far enough, however. It had failed in the following respects:

a. It was an error to assume that the duty of reasonable accommodation required the worker to carry out the full compliment of their pre-disability job;

b. Secretarial work could have made up a part of the accommodated role;

c. The respondent had failed to consider allowing the complainant to try and see what she could do. Rather the decision was made on the basis of non-trial assessments.

3. The Court found that the idea of a ‘floating SNA’ whilst it might have been unhappily in its nomenclature represented the crux of the matter. The Court said:

“Ms McG told the Court that what she meant by that term was that the work of all of the SNAs employed by the Respondent could be reorganised so as to confine the Complainant to performing those tasks that she was physically able to perform safely across a number of classes while distributing those tasks that she could not undertake amongst the other 26 SNAs. That would undoubtedly have involved a significant change in how the care needs of those attending the school could be met. But it cannot be fairly characterised as expecting the Respondent to create a wholly new job. The Complainant at all times wished to return to work as an SNA but with the various components of that role reorganised so as to relieve her of responsibility for undertaking those tasks that she could not perform.

In her evidence to the Court Ms M dismissed this possibility because, she said, it would involve the other SNAs in undertaking additional lifting and other physically demanding work. She said that this would be unfair to the Complainant’s colleagues and could pose a health and safety risk for them. Ms M accepted that she had never discussed this possibility with the other 26 SNAs nor did she have an assessment undertaken of the possible impact on their health and safety. The Court is satisfied on the evidence that this possibility was never adequately considered by the Respondent.

In this case the Respondent did obtain independent professional advice on the Complainant’s capacity. That advice did not rule out the possibility of the Complainant returning to work if certain adjustments were made to the range of tasks that she would be expected to perform. The Complainant was not consulted on the question of how effect might have been given to the recommendation made by the professional advisors. Nor did the Respondent’s Board of Management properly or adequately consider that question. It simply concluded that because the Complainant was manifestly unable to undertake the full range of duties attaching to the job of an SNA she could not return to work. Had the Respondent given full and adequate consideration to all the possible options it might or it might not have reached a different decision.”

High degree of deference to an employers properly informed decision

The Court tempers the far-reaching implications of its decision by reminding the reader that it was not saying the worker should have been accommodated. Rather it said poignantly that we will never know if the worker in this case could properly have been accommodated because of the deficiencies in the process. Also the Court gives comfort to employers by underlying that appropriate deference will be afforded to the position of the employer as the decision maker on the question of reasonable accommodation. The Court said:

“Where an employer reaches an honest and informed decision having considered all of the available options the Court must show a high degree of deference to that decision and should not seek to substitute its opinion on what is possible or reasonable in the particular circumstances of that employment. If, however, the employer fails to properly understand the scope of its duty or fails to adequately consider all of the options that may be available they will have failed in their statutory duty toward the disabled person.”

Duty to keep position available?

It was submitted that a recent decision of the Tribunal reminds us that disability cases are not only concerned with reasonable accommodation but also the simple proposition that a worker should not be dismissed due to disability. In other words the Act does deal with the stand-alone issue of dismissal in much the same way as the Unfair Dismissals Act 1977-2007 [which notably does not include disability as one of the prohibited grounds in s.6(2)].

Wozniak v Tuleya DEC-E2014-049 concerned a complainant who worked in a hair salon. She underwent surgery to her back and gave evidence that she had informed the respondent she would be absent until Christmas. The respondent gave evidence of attendance issues and other difficulties with the complainant’s work. It is clear from the evidence that the employer had failed to keep abreast of the prognosis and recovery of its employee and simply assumed (one might say, hoped) she would never be coming back.

The crux of the evidence was the discovery by the complainant’s husband that she had been replaced in the salon when he went there to have his hair-cut. When he asked about it he was informed that his wife had been replaced. Ultimately it is a case decided on its facts because the Tribunal simply did not believe the respondent or his partner and found that they permanently replaced the complainant knowing she was on sick leave.

The case is not concerned with reasonable accommodation or the processes so painstakingly set out in A School v A Worker but it is a refreshing reminder that the protection can be very straightforward. However, it is also a sad reminder that the duty of reasonable accommodation, in some cases, clearly does not even seem to enter the employer’s mind.

It was submitted that it is difficult to reconcile the foregoing principles and duties of employers with the manner in which the Respondent dealt with the Complainant in this case.

Redress

The jurisdiction of the Equality Tribunal in Section 82 of the Act provides principally for an order for compensation for the effects of acts of discrimination. Where this mode of redress is decided upon the WRC is required to follow the decision of the Court of Justice of the European Union (the CJEU) in Von Colson and Kamann [1984] ECR 1891. Here the Court held that the sanction for breaches of Community rights must be effective, proportionate and dissuasive. This means that the compensation awarded must fully compensate the complainant for the economic loss and distress, which she sustained as a result of the breach of her Community rights. It must also contain an element that reflects the gravity of the infringement and acts as a disincentive against future infractions.

Respondent’s Submission and Presentation:

On behalf of the respondent Peninsula Business Services refuted the allegations and contended that the claimant was not discriminated against on the grounds of disability and was not dismissed for discriminatory reasons.

It was submitted that the claimant had failed to identify an actual or hypothetical comparator .

It was submitted that the claimant had failed to establish a prima facie case of discrimination to demonstrate that a) she was discriminated against on the grounds of disability b) that her employer had failed to provide reasonable accommodation for her on the grounds of disability andc) that she was dismissed for discriminatory reasons.It was advanced that the claimant had failed to discharge the initial probative burden required of her and that consequently her complaint could not succeed.The provisions of Melbury developments v Arthur Velpetters (EDA0917) was invoked in support of that position where the Labour Court found

“Section 85A of the Acts provides for the allocation of the probative purden in cases within its ambit.This requires that the Complainant must first establish facts from which discrimination may be inferred.What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.All that is required is that they be of sufficient significance to raise a presumption of discrimination.However, must be established as facts on credible evidence.Mere speculation or assertions , unsupported by evidence cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

It was submitted that the claimant had failed to identify any specific instances of alleged discrimination merely stating that she refused work on the 1^st.June 2015 and received her P45 dated the 31^st.May 2015.

It was submitted that the claimant had suffered a personal difficulty when her home went on fire on in Jan 2015.The claimant advised her supervisor on the 23^rd.Jan. 2015 that she would not be available for work the following week – she was advised to take all the time she needed and indicated by text “ hopefully will be back Monday”.

On the 2^nd Feb. the claimant texted her Superviser “ I wont be available for a few weeks until things settle down “.The claimant agreed to work for 4 hours on the 14^th.Feb. – she indicated she could not work when offered hours for the 28^th.February.

The respondent set out a chronology of the texts exchanged between the claimant and her Supervisor from the end of Feb to the end of April.

The claimant’s supervisor invited her to discuss the summer roster on the 6^th.& 20^th.May The claimant was sent a reminder on the 30^th.May and responded that she was not “ available to work for you … as there was so much going on”.The Supervisor responded to the effect that she was sorry they had been unable to work something out , thanking her for her service and committing to sending out her P45.When the claimant responded on the 2^nd.June clarifying that she had not resigned , the Supervisor reassured her that her job was still there.It was submitted that the respondent wrote to the claimant on the 3^rd.June confirming that she had received her medical certs – she had been under the impression that the claimant was on unpaid leave.The Supervisor tried to have a meeting with the claimant but she was ill and she texted the claimant on the 24^th.June to confirm there was a position available for her if she was ready to return – the claimant had not responded.

It was submitted that in order for an employer to provide reasonable accommodation , they must first be aware that the employee is suffering from a disability.It was submitted that the respondent had no knowledge of the claimant’s disability as they were only furnished with the medical certs on the 2^nd.June2015.It was submitted that the claimant had failed to advise her employer that she was medically unable to work as a result of a disability as defined under Section 2.The onus of proof rested with the claimant.On learning the claimant was suffering from stress on the 2^nd.June , the Supervisor tried to meet the claimant .The claimant had accepted adhoc shifts at the shop but had not appraised her employer that she was medically unfit.No mention of the illness was made in March 2015 when the Supervisor asked the claimant if she needed any help.

It was submitted that it was impossible for the respondent to discriminate , mush less dismiss for discriminatory reasons when they were unaware of the disability.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Decision:

I have reviewed the direct and documentary evidence presented at the hearing .I am required to decided if the claimant was discriminated against by the respondent on the grounds of disability contrary to the provisions of the Employment Equality Acts 1998 and 2011 in relation to her alleged dismissal and the failure to provide the claimant with reasonable accommodation.

Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It provides in effect that where facts are established by or on behalf of a complainant from which discrimination may be inferred , it shall be for the respondent to prove the absence of discrimination.Previous decisions of the Tribunal and the Labour Court have established that the test is well settled that the claimant is required to prove the primary facts upon which she relies in seeking to raise an inference of discrimination.

In her evidence at the hearing the claimant asserted that she regularly submitted medical certificates to the respondent following attendance at her GP although her recollection of the exact dates upon which the certificates were submitted was unclear.For their part the respondent’s representative insisted that the respondent took the claimant to be on unpaid leave from January – June 2015 and submitted that the medical certs were not received by them until the 3^rd.June 2015.The certificates submitted to the respondent referred to” Stress Post House Fire”.

I am satisfied that clinical depression falls within the definition of disability contained in Section 2(1) of the Acts.On the basis of the evidence presented at the hearing however , it is apparent that the first documentary reference to” severe clinical anxiety depression “ is contained in a letter from the GP to the claimant’s representatives dated the 15^th.June 2016.I note that there was no reference to clinical depression in the claimant’s complaint to the WRC.The claimant herself acknowledged at the hearing that in her exchanges with her supervisor/manager she did not disclose that she was suffering from clinical depression either in direct discussions or the text messages exchanged between them.In those circumstances , I have concluded that the respondent was unaware of the claimant’s disability and that there was no indication that the matter of reasonable accommodation would arise.Accordingly, I find that the claimant has failed to establish facts from which it might be inferred that the claimant was discriminated against on the grounds of disability.Consequently, I find against the complaint of discriminatory dismissal and against the complaint of failure to provide reasonable accommodation.I am satisfied that this reasoning is consistent with the provisions of Labour Court Determination EDA0822 .

Dated:   13^th October 2016