Complainant

Respondent

Anonymised Parties

An Employee

A Company

Representatives

 Ferrys Solicitors

  Beauchamps Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00008067-001

08/11/2016

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

CA-00008067-002

08/11/2016

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

CA-00008067-003

08/11/2016

The complainant withdrew his complaint CA 8067-001   pursuant to the Payment of Wages Act, 1991.

CA 8067 – 03 Discrimination on   grounds of Disability, conditions of employment, reasonable accommodation and   victimisation.

The Complainant alleges he was   discriminated against by the Respondent on the ground of disability contrary   to section 6(2) of the Employment Equality Acts 1998 to 2015 in relation to   its failure to provide reasonable accommodation in an appropriate and timely   manner. He was victimised in terms of section 74 of the Acts in the very   disrespectful manner in which he was treated particularly in relation to his   ongoing requests to be reasonably accommodated, which were undermined and   delayed by the Respondent which left him feeling isolated, discarded,   unwanted and with little hope for his continued employment with the   Respondent.

The Complainant suffered a   heart arrhythmia, a seizure and a stroke in early August 2016. He was treated   and made a very positive recovery but continued on a seizure management   treatment plan and was advised by his Consultant that he could not drive for   a period of 6 months.

The Complainant commenced   employment with the Respondent in or about September 16th, 2002 as a   Technical Services Engineer.

The Complainant’s relying on   the principles in Humphries v Westwood Fitness Club [2004] ELR 296 as   interpreted by the Labour Court in A School v A Worker EDA 30/2014 stating   that the Respondent, notwithstanding the fact that it appears to have been   aware of its obligations under the Acts, had to be forced into eventually   providing reasonable accommodation. Such reasonable accommodation was only   provided after the Respondent had   attempted to force the Complainant into accepting extended sick leave   on half pay for a 5 month period, thereafter offering a reduced working week   at 60% of his salary until it finally lived up to its responsibilities and   permitted his return to work on full pay in February 2017, some four months   after he was placed on involuntary sick leave despite being in a position to   return to work save for the fact he was unable to drive while he continued on   the seizure management treatment plan.

The Complainant is seeking a   find that:

-        That the Respondent   failed to reasonable accommodate him in a timely and appropriate    manner

-        Compensate him for the   indignity of being forced into involuntary and uncertified sick leave    for a period of 4 months while the   Respondent came to grips with its responsibilities under the Acts.

The complainant argued that the   correspondence exchanged between the Respondent and the Complainant very   clearly illustrates and highlights the failures of the former and its   reluctance to properly and appropriately discharge its obligations under the   Acts.

In early August 2016 the   Complaint suffered a heart arrhythmia, a seizure and a stroke. In late August,   the Complainant returned to work. While the Complainant could not drive from   location to location as would be his regular practice, he was directed to   work at Naas Hospital for a period of 3 weeks to carry out maintenance work on   various devices being utilised in the hospital. When that particular job was complete   the Complainant then returned to the Respondent’s main site where he worked   for the following week. There were a number of family and personal issues   that impacted on the Complainant and he was forced into a period of certified   sick leave due to stress.

On October 17th the Complainant   returned to work. He was summonsed to a meeting with Mr C., the HR Business Partner,   of the Respondent. The outcome of that meeting was that the Complainant was   sent home from work purportedly based on the Respondent’s “concern for his   welfare in work”. Mr.C also informed   the Complainant that his “inability to drive considerably impairs your   ability to carry out your contracted duties”. He went on to refer to the   Complainant’s lack of a “reliable form of transportation to ensure he will be   able to attend the workplace to carry out these restricted duties”.   Ultimately, Mr. C concluded on behalf of the Respondent that it was unable to   make “reasonable adjustments” to the Complainant’s role “to accommodate   restricted duties as it is not viable to do so”. Mr C then referred again to   the Respondent’s purported “genuine concerns regarding the effect performing   his duties” will have on the Complainant’s health and welfare.   Notwithstanding the fact that the Complainant was not certified as unfit for   work Mr C referred to his “continuing absences” from work as a basis for   determining that the Complainant should remain out of the workplace until   “fully fit to perform his role”. Mr C then offered the Complainant two   options:

      a.   remain on sick leave for the remainder of the six month period, receive sick   pay    up until October 31st, 2016, at   which point the Complainant’s sick pay quota would have been reached, and   thereafter receive 50% of his salary for the remainder of the six month   period following which the Respondent would review his “suitability to return   to full duties”.  

            b. remain on enforced sick leave until such time as the company can   seek further medical opinion regarding his suitability to return to the   workplace              

As is evident from his subsequent   letter of October 24th, Mr C, on behalf of the Respondent, considered the   above proposals to represent “reasonable accommodation” of the Complainant.

The Complainant responded to Mr   C by email on October 27th. The email makes clear the Complainant’s deep   disquiet and alarm at the manner in which the Respondent was dealing the   matters arising from his medical episode in August 2016. As is evident   therefrom the Complainant is effectively pleading to be permitted to return   to the workplace and highlighting numerous tasks and duties he could perform   notwithstanding his inability to drive for the following period.

On November 7th Mr C responded to the Complainant. Mr. C now accepted that the Respondent   could “reasonably accommodate” the Complainant’s return to work “on a trial   basis” wherein he would perform 60% of his current duties in the workshop and   be paid 60% of his salary on the basis of a 3 day week. Mr C pointed out that “the business has had to   add extra resources to the engineering team to ensure the field service   element is carried out. This is obviously at a cost to the business” thereby   emphasising to the Complainant that he should in some way consider himself   fortunate or lucky to now being offered a return to work, albeit on a limited   basis.

The Complainant responded to   inform Mr C that he did not consider the proposal as constituting a discharge   of the Respondent’s obligations to provide reasonable accommodation and that   regretfully he considered that he had no alternative but to submit a   complaint to the Workplace Relations Commission in order to protect his   position. He did however invite Mr C to reconsider matters.

For reasons which remain   unexplained Mr C did not see fit to respond to the Complainant, who remained   isolated on enforced leave, until a letter was delivered by courier two days   before Christmas. Mr C now confirmed that the Respondent’s position was   changing once again and that it could now reasonably accommodate the   Complainant with a four week trial period during which he would work a   minimum of 3 days in the workshop but up to five days if there “is a need”   and he would receive full pay. The very significant change in the   Respondent’s position from the meeting of October 17^th.

The Complainant responded by   email on December 30th seeking clarification on a number of matters but   confirming that he was anxious to return to work on a full working week   irrespective of pay. There was a further exchange of correspondence resting   with the Complainant’s email of January 18th in which he again confirmed that   he wanted to return to work as soon as possible. Unfortunately, it took Mr C   a further 3 weeks to respond at which point he sent an email to the   Complainant advising that of a return to work date on February 13th, almost   four months after the Complainant had been forced to take involuntary and   uncertified sick leave.    

On March 10th, 2017 the   Complainant returned to full duties as he was cleared for driving.

The Complainant’s case in terms of the   statutory duties which have been breached by the Respondent is premised on   the two stage process laid down in Niaomh Humphries v Westwood Fitness Club.   Once the Respondent was placed on notice of the Complainant’s disability, it   was obliged to (i) assess the disability and how long it would last, and (ii)   examine what appropriate steps could be taken to reasonably accommodate that   disability. An obligation also arises to consult with the worker on the   appropriate steps. These steps should have included consideration of adapting   the job undertaken by the Complainant or a consideration of other functions   (A School v A Worker). It is submitted this process and the duty in section   16 of the Acts required the following:

The Complainant states that the Respondent   should have:

1. First and foremost,   considered the discriminatory nature and context of what was happening: it   should have been sensitive to fact that the Complainant suffered from a   disability and was entitled to respect and to his dignity in applying the   legal protections available to him.
3. Consulted with the   Complainant if there was the slightest issue to be taken with his own   Consultant’s advices that he was in a position to return to work rather than   attempting to force him into an extended period of involuntary sick leave.
4. Sought clarification   of any doubts which it might have had before going to the expense (and   necessary implications adverse to the Complainant and his Consultant) of   engaging a further expert on the matter.

Where deemed necessary after a   properly conducted, rational and positive preliminary consideration of   reasonable accommodation (on a least intrusive, and most expedient means   possible, rationale):

1. Ascertained the precise range of incapacity.
2. Set out the types of   job the Complainant could conceivably do in the Company and eliminate them   one by one transparently and in a process of consultation with the   Complainant. What actually occurred in the present case was that the   Complainant was forced to present the list of jobs he could perform to the   Respondent in the hope that it would respond positively to his request to   return to work.

Moreover, in allowing so much   time to pass and attempting to provide accommodation on significantly reduced   terms most acceptable to the company and implying very clearly that the   Complainant should in some way consider him lucky in that regard, the Respondent:

1. victimised the   Complainant, leaving him feeling isolated, disregarded, unwanted and with no   confidence for the future in his employment;
2. demonstrates that   reasonable accommodation was not a serious objective of this Respondent and   was effectively forced on it solely as a result of the Complainant’s   determination in refusing to accept discriminatory treatment;
3. allowed the Complainant to become isolated and fearful   of his future during a period of four months of involuntary sick leave

The Complainant has suffered   discrimination on the disability ground (prohibited in s6(2)(g) of the Act)   and in contravention of s.8 of the Act insofar as he was denied appropriate   facilitation and accommodation of his disability in terms of carrying out his   role and placed on involuntary and uncertified sick leave for a period of   four months. The fact that the Complainant did not suffer any financial loss   is not relevant to the fact of discriminatory treatment and the Respondent   should not be permitted to employ such an argument as a means of avoiding its   responsibilities under the Acts particularly as a result of its conscious and   deliberate decision to impose a four month period of involuntary and   uncertified sick leave on the Complainant who felt isolated, discarded and   fearful for his future as a result.  

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 is abundantly clear from the correspondence attached that   the Respondent fully accepted that the Complainant was suffering with a   disability and was conscious of its obligations to provide reasonable   accommodation. It is also abundantly clear however that the Respondent failed   utterly to discharge its obligations for a period of some four months while   the Complainant was forced to engage in stressful correspondence, while   isolated and abandoned on enforced sick leave, in an attempt to cajole,   encourage and ultimately force the Respondent into the correct course of   action.

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.

In A School v A Worker (Nano   Nagle case) the Court considered whether the employer in that case had fully   considered its duty to reasonably accommodate the Complainant. 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 reorganized   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 tasks 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. 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.”

The Complainant commenced employment with the Respondent   on the 16th September 2002 and is employed as a Technical Services Engineer. In   his role as Technical Services Engineer, the Complainant is required to   travel to different hospitals across Ireland, where he is required to service   and repair medical equipment.

In or around August 2016 the Complainant became ill and   was on sick leave for a period of 4 weeks from the 2nd August 2017 until 29th   August 2016.

The Complainant lodged three complaints to the Workplace   Relations Commission on the 8th November 2016 alleging:

a)        That a bonus payment due to him was   withheld without justification on the May 2016 in the amount of €2,000.

b)        That a bonus payment due to him was   withheld without justification on the 12th August 2016 in the amount of   €2,000.

c)         That he was discriminated against by   reason of a disability in failing to provide him with reasonable   accommodation, in victimising him and by unlawfully discriminating against   him in his conditions of employment.

COMPLAINT UNDER THE PAYMENT OF WAGES ACT 1991

It is denied that there was an   unlawful deduction from the Complainant's wages contrary to section 5 of the   Payment of Wages Act 1991 as alleged or at all.

The Complainant's eligibility   for a bonus payment arose pursuant to a letter from the Respondent to the   Complainant dated November 2011 which provided that "Bonuses will be   awarded provided the agreed objectives are reached by the employee.

In or around February 2016, the   Complainant refused to carry out his duties in relation to a product range,   resulting in significant delays in fulfilling customer requirements and   therefore was not eligible for a bonus payment in May 2016.

On the 13th May 2016, the Complainant's line   manager, wrote to the Complainant stating that he was being placed on a   Performance Improvement Plan for a period of 50 days

On the 24th May 2016, the   Complainant was placed on suspension pending investigation due to a failure   to follow a reasonable request from human resources and his line manager and   also in relation to alleged underperformance in respect of his duties. An   investigation meeting was scheduled for June 2016. and it was ultimately   recommended that the matter proceed to a disciplinary hearing. A copy of the   investigation report is attached at Appendix 6.

A disciplinary meeting was scheduled for the 28th June   2016, following which the Complainant was ultimately issued with a written   warning which would remain on his personnel file for a period of 6 months from   the date of issue. The Complainant was therefore not eligible to receive a   bonus payment in August 2016. The Complainant was given a right of appeal in   relation to this warning.

It is submitted that the claim for the bonus payment does   not fall within the jurisdiction of the Payment of Wages Act 1991 as there   was no deduction under Section 5 thereof in circumstances where the bonus had   not been earned by the Complainant in accordance with the bonus scheme.

Without prejudice to the foregoing, if, which is denied,   the Complainants non-qualification for the bonus did constitute a deduction,   it is submitted that it was permissible and lawful pursuant to Section of the   Act which states:

An employer shall   not make a deduction from the wages of an employee (or receive any payment   from an employee) unless—

b) the deduction   (or payment) is required or authorised to be made by virtue of a term of the   employee's contract of employment included in the contract before, and in   force at the time of, the deduction or

1In summary, it is submitted that in accordance with the   terms of the bonus scheme, no bonus was due to the Complainant in May 2016 or   August 2016 and accordingly there was no deduction. In the alternative and   without prejudice to the foregoing, if there was a deduction, it was   permissible and lawful pursuant to Section

COMPLAINT UNDER SECTION 77 OF THE EMPLOYMENT EQUALITY ACTS   1998-2015

The Respondent at all times   acted reasonably, fairly and in accordance with medical advices. On his   return to work following his illness, the Complainant attended with the   Company doctor who confirmed that he was fit to return to work on restricted   duties and that he was not permitted to drive for a period of 12 months from   the date of the seizure as per the Road Safety Authority Guidelines .

The Complainant disputed this   and stated that his own GP was of the opinion that the Complainant could   resume driving duties after 6 months. Given the differing opinions of the two   medical advisors, the Complainant was referred to a second medical advisor on   behalf of the Respondent Company for a third opinion on when the Complainant   would be in a position to resume his full duties including driving.

Following the Complainant’s   initial attendance with the Company doctor, he went on a further two week   period of sick leave.

A meeting was scheduled with   the Complainant on the 17th October 2016 to discuss his return to work   following sick leave. During this meeting the Complainant stated that he was   stressed as a result of alleged performance issues which remained unresolved.   The employee remained on sick leave and the Respondent wrote to the employee   on the 24th October 2016 setting out its proposals to the Complainant.

The proposals were not accepted   by the Complainant and he stated that he was fully fit to return to work in   the workshop five days per week. The Respondent reviewed its requirements in   terms of the level of work available in the workshop and proposed that the   Complainant would work three days per week in the workshop until he was fit   to resume his full duties including driving.

The Complainant was offered the option of working in the   workshop three days per week on full pay pending his resumption of full   duties. Having reviewed the needs of the business and the level of work   available, the Respondent was satisfied that there would only be three days'   work (at most) available for the Complainant. Despite the level of work   required, the Respondent agreed to pay the Complainant his full salary for   working 3 days per week. The Complainant agreed to this proposal and returned   to work on a 3 day week (with full pay) on the 13%' February 2017 . He   subsequently returned to his normal duties once certified as fit to drive.

The Respondent denies that it has failed to provide   reasonable accommodation to the Complainant. The Complainant remained on full   pay at all times. In giving him alternative duties for three days a week,   whilst paying him for five, the Respondent could not have been more   accommodating to the Complainant. Generally, the requirement for reasonable   accommodation does not require an employer to create a new role and/or to   continue to pay an employee for work that he is not fit to do.

The Complainant has not set out his complaint that he was   discriminated against in relation to the terms of his employment, nor has he provided   detail as to how he alleges he was victimised and as a result, the Respondent   is not in a position to respond to these complaints and reserves the right to   make further submissions at the hearing of this matter or thereafter as may   be appropriate.

The burden of proof   is cases of this nature is governed by s.85A of the Acts, as inserted by s.38   of the Equality Act 2004. This section provides as follows:

“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.”

The Court acknowledged in ICTS   (UK) Ltd v Magdi Ahmed EDA3/2004 that there will be situations where the   Mitchell test (the duty to demonstrate ‘primary facts’ from which it may be presumed that discrimination has   occurred) will not be appropriate. Where the alleged discrimination consists   of discriminatory questions or comments made in the course of a recruitment   process, it is   accepted that the only   evidence which the Complainant will generally be able to adduce will be his   or her own uncorroborated testimony. It is not appropriate therefore to place   the probative burden on the Complainant as this would impose a higher   standard of proof than was envisaged by the legislation.

In Nevins v. Portroe Stevedores   [2005] 16 E.L.R. 282 the Labour Court followed Barton v Investec Henderson   Crosthwaite Securities Ltd [2003] 1 I.C.R. 1205 (an English Tribunal   decision) where it was held that, since the facts necessary to prove an   explanation would usually be in the possession of the respondent, it required   "cogent evidence" from the employer to discharge that burden. This   means that where an employer presents a series of unsatisfactory explanations   or relies on mere denial, a Tribunal must be mindful that discrimination is   "usually covert and often rooted in the subconscious of the   discriminator".

The definition of disability   contained in the Employment Equality Acts is set out in a list of broad   categories as follows:

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

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

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

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

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

The scope of protection against discrimination of the Act   is delineated in Section 8.  

Section 8(1) of the Act prohibits discrimination in   relation to:

               (a)   access to employment,

               (b)   conditions of employment,

               (c)   training or experience for or in relation to employment,

               (d)   promotion or re-grading, or

               (e)   classification of posts.

Accordingly, the scope of prohibited discrimination is   wide and encompasses every stage of employment.  

In this jurisdiction disability has been interpreted in an   extremely broad way . In An Employee v. Bus Eireann [2003] ELR 351 it was   held that heart conditions amount to a disability for the purposes of the   Acts. Further, in the case of Mr O v. A Named Company DEC-E2003-052 it was   held that work related stress may amount to a disability. Further, as was   suggested in A Government Department v. A Worker EDA094, the de minimis rule   applies and the condition must manifest in a minimal level of symptoms to be   classified as a disability.

The complainant herein suffered   a cardiac event, a seizure and a stroke.   As a result of the seizure he was placed on a six month seizure plan.   Part of that plan was that he was not allowed to drive for a period of six   months. I am satisfied based on the evidence adduced that the complainant was   suffering from a disability at the material time.

I must now assess wheather or   not the efforts made by the respondent to make reasonable accommodation for   the complainant met their legal obligations to do so.

The issue in this case is one   of delay. The respondent did make attempts to reasonably accommodate the   complainant albeit slowly and in a piecemeal fashion. The respondent delayed   at almost every stage of the process taking at times three weeks to respond   to the complainant’s requests/ queries. In circumstances where the only   limitation on the complainant was his inability to drive and where a large   portion of his work was done onsite, those delays are inexcusable. The respondent concluded without discussing   the matter with the complainant that he didn’t have an alternative method of   getting to and from their external sites. It is incumbent on the respondent   to have a discussion with the complainant relative to all issues that may   hinder his ability to carry out his contractual duties. The respondent failed   in their duties in this regard. Furthermore, there is no reason why the final   accommodation made in January, 2017 could not have made at the outset had the   respondent address the issue correctly.

There is an onus on the   employer to carry out all such investigations in a timely, proactive manner.   This principle was endorsed by the Labour Court in A Government Department V A Worker (ADE-0516), "The duty to   provide special treatment or facilities is proactive in nature." The   Court decision stated:

… “I note that it was nearly 6 months after the complainant went on   sick leave after she was moved from her office before the respondent had a   meeting with the complainant and her union representative and engaged   actively in seeking a resolution to the issue. This meeting took place on the   13th of December 2007. I note that the respondent was very slow in responding   to IMPACT and before the respondent actively engaged with the issue IMPACT   had to raise the matter under the grievance procedures. It is clear from the   evidence that the respondent was not proactive in any way in seeking a single   office near a toilet for the complainant….. The decision to ignore her   request for a single office on her own near a toilet had serious consequences   for the complainant in that her condition was exacerbated.”

The implication from the Court’   decision is that an employer must act without delay when it has been brought   to its attention that reasonable accommodation is required for an employee   who is suffering from a disability, in order to carry out their contractual   duties.

I find that the required pro-activity element   is absent. The respondent took an unreasonable time to accommodate the   complainant's disability. Their efforts to deal with the matter in a   piecemeal fashion with lengthy delays between each stage is unacceptable.

Having carefully considered all   of the evidence, together with the submissions and documentation I find that   the complainant has established a prima facia case of discrimination and the   respondent has failed to meet its legal requirement to make reasonable   accommodation.

I find that insufficient   evidence adduced in relation to the claim of victimisation and therefore the   claim fails.

CA 8067-002.

The respondent has a very clear   policy in relation to their bonus schemes. It states:

"Bonuses will be awarded   provided the agreed objectives are reached by the employee”.

In February 2016, the   Complainant refused to carry out his duties in relation to a product range,   resulting in significant delays in fulfilling customer requirements. In May   2016, the Complainant's line manager, wrote to the Complainant stating that   he was being placed on a Performance Improvement Plan for a period of 50   days. Later in May 2016, the Complainant was placed on suspension pending   investigation due to a failure to follow a reasonable request from human   resources and his line manager and also in relation to alleged   underperformance in respect of his duties. An investigation meeting was   scheduled for June 2016. It was ultimately recommended that the matter   proceed to a disciplinary hearing. Following a disciplinary meeting, the   Complainant was issued with a written warning.

The complainant, whilst taking   issue with the substance of the allegation made agreed with the facts as   outlined.

In all of the circumstances I find that the Complainant   did not meet with respondent’s requirements in relation to the payment of the   bonus at the material time. Accordingly, I find that his claim fails.