ADJ-00009361

Complainant

Respondent

Parties

Jenny Moran

Kaneco Limited

Representatives

Carla Murphy BL

Barry Walsh, Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00012271-001

04/07/2017

The complainant is a mechatronics engineer and she joined the respondent company on July 4th 2016. She gave notice of her resignation on April 12th 2017 and she left on April 18th. The complainant has multiple sclerosis (MS), a condition she was diagnosed with around 2004. Her complaint is that she was discriminated against because, in her view,

1 Her former employer failed to provide reasonable accommodation for her illness;

2 Her probation was extended beyond the six months provided for in her contract and she was offered a fixed-term contract;

3 She resigned on the grounds of on constructive discriminatory dismissal.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“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 effect of this is to place the burden of proof in the first instance on a complainant, to establish facts, which, on an initial examination lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, she has been treated less favourably than someone who does not have MS, or who does not have a disability like MS.

Failure to Provide Reasonable Accommodation

In her submission, Ms Murphy, counsel for the complainant, said that, around two weeks after she joined the company, the complainant advised the managing director, (“the MD”) who was the person who recruited her, that she has MS. The complainant underwent a particular drug therapy every 28 days. The complainant informed the MD that this procedure would mean that she may be late for work on her treatment days.

Around February 2017, the complainant was about to start a new drug regime. As she had previous experience of changing her medication, she informed the MD on February 10th that there may be an adverse effect from the change in drug treatment. The complainant’s evidence is that the MD asked her to provide him with information on MS and that he asked her to research the possibility of the company getting a grant for employing a person with MS. When the complainant did some research and found that there were no grants available for employing a person with MS, on the same afternoon, she informed the MD to this effect. She said that from then on, he was “unapproachable with a changed attitude towards her.”

It is the respondent’s evidence that they outsource human resources work to an external company and the liaison person between them and the external provider is the accountant.   For convenience, we will refer to this person as “Ms A.” On February 21st 2017, the complainant advised Ms A of the change in her treatment. At this meeting, she asked if she could start work at 8.30am and finish at 4.30pm.   This was to allow for hospital appointments and her expectation that she would be tired in the afternoons.   Ms Murphy said that, instead of reasonably accommodating the complainant, Ms A refused her request and advised her that she could work part-time.

In the book of documents presented in evidence for the complainant, reference was made to three precedent cases where the issue of reasonable accommodation is addressed.   In Humphries v Westwood Fitness Club, [2004] ELR 296, the Labour Court concluded that,

“The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with the disability is placed in a position where they can have access to, or, as the case may be participate in or advance in employment or undergo training. This can involve affording the person with the disability more favourable treatment than would be awarded to an employee without a disability.”

In another Labour Court case, that of Sea and Shore Safety Service Ltd v Byrne, EDA 143, the Court found that the failure of Ms Byrne’s employer to reasonably accommodate her acute fear of rats and to provide reasonable accommodation to protect her from exposure to rodents amounted to victimisation.

The High Court case of Nano Nagle School v Daly, [2015] IEHC 785 was also cited in the complainant’s submission where the Court expanded the duty of the employer to go as far as changing the employee’s original job to accommodate their disability. It was submitted that this option was entirely dispensed with in the case under consideration.

Discrimination in Conditions of Employment

On March 6th 2017, the complainant received an e mail from Ms A, asking her to get a letter from her doctor. The e mail reads:

“Just a reminder to get a letter from your dockets (sic) in relation to the MS and that you are fit to work and carry out all duties or restricted duties as discussed as we need to look at a new contract when you (sic) 2nd probationary period is up at the end of the month.

“We will also need one to say you are ok to work Thursday and Friday after you get your new med’s on Wednesday.”

The complainant said that, before she got this mail, she was not informed that her probation was being extended, nor did she agree to a change in her contract from permanent to fixed-term. She denies that any performance reviews took place during the six months of her probation or that, as her employer stated, that a meeting took place in December where issues about her performance were discussed.

The complainant’s case is that, by extending her probation and proposing to change her contract from permanent to fixed-term, the respondent discriminated against her on the grounds of her disability. It was submitted that no other full-time permanent employee had their contract changed to a fixed-term contract.

Constructive Discriminatory Dismissal

In her submission, Ms Murphy said that, because of the discriminatory treatment of her employer, the complainant had no option other than to resign. She argued that it was manifestly unreasonable for the respondent to fail to accommodate the complainant in circumstances where it would not have placed a disproportionate burden on them to do so.

Ms Murphy also submitted that the purpose of extending the complainant’s probation and “unilaterally seeking to alter her status from a full-time permanent employee to a fixed-term employee was to facilitate the respondent in dismissing the complainant during the unlawfully extended probationary period or at the conclusion of the unilaterally altered fixed-term contract.”

It was argued that this was retaliatory and victimising of the complainant for invoking a protected act under section 74(2) of the Employment Equality Act 1998:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to —

(a) a complaint of discrimination made by the employee to the employer.”

Sub-sections (b) to (g) are not relevant here.

The complainant’s case is that her request to change her start and finish times, referred to by Ms Murphy as “the most basic accommodation,” was a protected act and that, other than this, there is no causal connection to the complainant’s dismissal.

The complainant’s submission refers to the definition of dismissal at section 2 of the Employment Equality Act;

“dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and ‘dismissed’ shall be construed accordingly.”

In the Labour Court case of A Worker (Mr O) v an Employer, the Court set out the two tests,

“…either or both of which may be invoked by an employee.   The first test is generally referred to as the ‘contract’ test where the employee argues ‘entitlement’ to terminate the contract. The second, or ‘reasonableness’ test applies where the employee asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.”

The contract test is described as determining that the employer has engaged in a significant breach “going to the root of the contract,” as described by Lord Denning in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 332. Referring to this significant breach, the Court went on:

“Not every breach of contract will give rise to repudiation.   It must be a breach of an essential term which goes to the root of the contact. This is a stringent test which is often difficult to invoke successfully.”

As an alternative, or, in combination with the contract test, the reasonableness test seeks to determine if an employer has conducted him or herself so unreasonably in relation to the employee, that the employee cannot be expected to put up with it any longer.  

It was submitted that the “essential term” of a contract is the requirement to be treated with fairness, respect, dignity and equality.   “Given the respondent’s clear intention to be no longer bound by the fundamental terms of the contract,” the complainant considered her employment at an end and resigned.

Evidence of the Complainant

In her direct evidence, the complainant said that she is a qualified sheet metal worker and that she has a degree in mechatronics. Before she joined the respondent company, she worked as a contracts engineer for a ventilation company. In the respondent’s organisation, she worked for a division that installed ventilation canopies which was headed up by a company director and she reported to this person on a day to day basis, as well as to the MD of the main business.   We will refer to the director of the canopies business as “Mr B.”

Having commenced with the company on July 4th 2016, the complainant said that around a week later, she advised the MD that she was being treated for MS. She said she was diagnosed with the condition in 2004.   She said she told him because she had to undergo infusion treatment once 28 days from 7.00am to 8.30am and she was concerned that she might be late for work.

The complainant said that everything was normal at work from July 2016 until February 2017.   She said that she got no formal training, doing “a bit of everything,” from drawings to site visits and working across the ventilation business and the main company. She said that she was later given a project co-ordinator role on the work associated with the installation, service and maintenance of canopies. She also had responsibility for CE (Conformité Européenne) marking of completed installations.  

In February, the complainant was planning to start a new drug regime. This involved ceasing her current treatment so that she could start the new programme. She said that she told the MD that she was about to start the new treatment and she said that he asked her to research the possibility of getting a grant for employing a person with MS. She said that she was shocked at this request, but she did the research and in the afternoon of February 10th, she sent an e mail to the MD with just one line, stating,

“Please see an explanation of Multiple Sclerosis and supports for employers in the documents attached.”

As a result of the change in medication, the complainant said that she became tired in the afternoons, but was stronger in the morning. To manage her tiredness, on February 21st 2017, she said that she asked Ms A if it would be possible to start earlier at 8.30am and finish at 4.30pm. She said that she was normally in work at 8.30am and she wanted to work the same number of hours, but just to start and finish earlier. The complainant said that she got no response to this request.   She said that Ms A “offered me a part-time role.”

On March 6th, Ms A sent the e mail to the complainant which has been referred to above, in which she asked the complainant to get a letter from her doctor to say that she is fit for work and informing the complainant that her second probation period would be up at the end of the month and that “we need to look at a new contract.”

The complainant said she was not aware that her probation had been extended. She said that she got no training, and that it was a “learn and grow” type of role, but “as far as I was concerned, everything was going well.” At the hearing, she was reticent when she was asked about any discussions that took place regarding her performance. She said that she had no formal performance review and no formal discussion about her probation ending, and no conversation about a second period of probation. When she received the e mail of March 6th, the complainant said that she consulted her solicitor.

On March 23rd, the complainant said that she met Ms A and the MD and she was told that she was starting a new contract for three months. She said that at this meeting, the MD said, “there’s no job for me here.” She said that she was informed that the company was taking on someone else and that she was to stay until they found someone. As a result of this conversation, the complainant said that she sent an e mail to her solicitor and, on March 28th, her solicitor wrote to the MD. This letter, which was presented in evidence, complains about the failure of the respondent to provide the complainant with reasonable accommodation for her illness and refers to “threats ofunilateral variation to her contract.” Her solicitor also described the complainant’s understanding that she was “told in no uncertain terms that she should look for another job.” Asked about her employer’s reply to this letter, the complainant said that there were “discrepancies” in the reply.   She said that, in the letter they “talked about reasonable accommodation, but I didn’t get it.” She said that she was offered part-time work and put on a “second probation.” She said that the company “haven’t accepted MS” and that they did not respond fairly to the letter from her solicitor. In response to a question from her counsel, the complainant said that there was “no one impartial in the company” that she could talk to.      

Responding to Ms Murphy, the complainant said she could see no future for herself in the company after the meeting of March 23rd and that she couldn’t see herself staying.   Shortly afterwards, she found another job and she started there on April 24th 2017. She said that she works a shift of one month of nights and one month of days and that her health is “good now,” and that “everything has settled.”

In cross-examination, the complainant agreed with Mr Walsh, for the respondent, that, when she advised the MD that she had MS, he asked if her there was anything she needed.   She said that she told him that in the event of a health episode, she would get an advance warning.

Answering questions in relation to her job, the complainant said that there were two parts to her role, that of project co-ordinator and R&D engineer. She disagreed that R&D was the smaller part of her role. She also disagreed when it was put to her that there were a number of performance issues such as inaccuracies on drawings and basic repeated mistakes raised with her during the first six months of her probation. She repeated that she got no formal training when she started and that it had been a while since she used the autocad programme and that she was in a learning process at the start.

The respondent’s solicitor, Mr Walsh, referred to a meeting in December 2016, which the MD will say was a “significant review meeting.”   The complainant disagreed and said that she had no performance review and no formal meeting. She said that if this was a review meeting, “it should have been clear.” When it was put to the complainant that, at this meeting, she was told that she would not get her performance-based increment, she said that there was no discussion about an increment and that she didn’t ask why she wasn’t getting it.

Referring to the meeting with Ms A on February 21st, the complainant said that her objective was to explain to Ms A about her need for an earlier start and finish time. The solicitor for the respondent said that Ms A will say that “we can look at it, but you’ll have to talk to (name of the MD).” The complainant agreed that she did not talk to the MD about her request for a change to her start and finish time.

When the complainant was asked if she recalled Ms A telling her that her probation had been extended, she said that she didn’t recall this. In her direct evidence, she said that the first she knew about her probation being extended was the e mail from Ms A on March 6th.   She said that she was not aware that the company had a grievance procedure and that she was afraid to ask someone, as she found that the MD had become unapproachable. When she was asked why she didn’t speak to Mr B, the director of the canopies business unit that she worked more closely with, she said that she “didn’t think it was his position to help.” She was also asked why she didn’t speak with the chief executive, but she said that she “didn’t have many dealings with him.”

Referring to the letter sent to the complainant’s solicitor on March 28th, Mr Walsh asked the complainant about the last paragraph:

“As will be clear from the above our client is anxious to continue with your client’s employment and would be very happy to meet with you and your client to discuss the issues raised and look to seek a workable solution for both parties. We look forward to hearing from you in this regard.”

In response, the complainant said that at the meeting on March 23rd, she was told that the company was going to hire someone else and that she should look for another job. She said that at that meeting, she was told that she was on a new contract from March 27th for three months.

Referring to the new job that she took up following her resignation, the complainant said that she applied for a job with this company when she was in college. She completed her degree in mechatronics in 2014.   She said that she applied again on March 28th 2017. She agreed that she spoke to the MD about a reference and that he asked her what he should say was the reason for her resignation. She said that they agreed that he would say that she was leaving to take up a job “more suited to her skill-set” or a job “more closely aligned to her degree.”   She agreed with Mr Walsh that the MD may have written this at her suggestion.  

Mr Walsh said that Mr B will give evidence that she had a discussion with him about her application for her new job and that she never mentioned that she was leaving because of a problem getting reasonable accommodation in the respondent’s company.   In response, the complainant said that she “didn’t want to make a big issue out of reasonable accommodation.” Mr Walsh said that Mr B will give evidence that the complainant moved to her new role in a company that she was keen to work in for a long time. She was in a position to move in April 2017 because she had changed her drug regime. She agreed that Mr B was “giving me guidance” and was “somewhat of a mentor.”

Finally, at the end of his cross-examination, Mr Walsh asked the complainant if she thought it was extraordinary that the MD would ask her to look for a grant to keep her employed. The complainant did not answer this question, but simply said that she “didn’t feel comfortable talking to anyone.”  

For the respondent, Mr Walsh said that the complainant’s disability “never or rarely manifested itself in relation to her duties or performance.” He said that when she informed the MD that she has MS, “this caused no issue…either at that stage or later.”

The canopies division where the complaint was assigned had just two employees, the complainant and Mr B, to whom she reported. The complainant was responsible for technical issues, with Mr B having responsibility for sales and marketing. Mr Walsh said that the complainant had a good working relationship with Mr B, and also with the MD, despite the performance issues which emerged.

The complainant’s main responsibility was project co-ordination on client sites, with a subsidiary function of R&D engineering. She was recruited because of her project co-ordination experience in her previous job. While she was effective at R&D, the respondent’s submission states that the complainant “struggled to reach the performance standards required for project co-ordination.” This raised concerns for her managers, as project co-ordination was the principal part of her role. It is the respondent’s position that the performance problems experienced by the complainant were not related to her disability. Rather, they were associated with “mistakes, often similar or repeated, in relation to technical matters that she should have been familiar with.” The respondent’s submission states that the MD discussed these issues with the complainant and engaged in “considerable coaching …to get her to reach the standard required.” It is the respondent’s case that the complainant’s “technical drawings were poor and had to be repeatedly corrected.”   E mails from the MD to the complainant were submitted in evidence showing that there had been problems on client sites and that the MD followed up with the complainant to get the issues sorted out.

Before Christmas 2016, the MD had a discussion with the complainant about the quality of her work.   At this meeting, the complainant acknowledged that there were problems with her work and she said that she was disappointed with her own performance. She never suggested that the poor standard of work was connected to her disability, but she said that she was under pressure as a result of trying to obtain a mortgage, insurance issues and moving house.

The respondent’s case is that at this meeting, the MD spoke about the challenges arising from the fact that the complainant appeared to be more suitable for the R&D part of her role, and was not succeeding at the project co-ordination.   The MD said that they would look at the volume of R&D work available and if it would be feasible to retain the complainant doing R&D work only. The MD said that they would talk again after Christmas.

In January, the complainant and the MD met again and the MD expressed reservations about how much R&D work was available for the complainant to be 100% dedicated to this work. The respondent argues that the complainant could have been given notice of termination at this point, but the MD did not take this course of action.

The complainant’s contract stipulated that she was on probation for the first six months of her employment with a provision to extend probation by three months. The respondent admits that the MD did not formally extend the complainant’s probation, but that he indicated to her that the performance-related increment that she may have been awarded at the end of six months, would not be paid. He believed that this made it clear to the complainant where she stood in relation to how her role was progressing. In February 2017, when Ms A told the complainant that he probation had been extended, the complainant did not challenge Ms A about this.

The complainant suggests that matters deteriorated for her when she commenced the change in her drug therapy in February / March 2017. From the respondent’s perspective, this is coincidental, and the change in medication was considered to be a personal matter and had no material impact on her role or performance. Any change of attitude in the management, as suggested by the complainant, is completely denied. The complainant never raised a grievance in respect of her treatment by the respondent and never made a verbal, written, formal or informal complaint about how she was treated in respect of her disability. The first communication received by the respondent about discrimination was in the letter of March 28th from the complainant’s solicitor. On March 31st, the respondent’s HR advisors sent a response, and, as outlined in the previous section of this document, stated, “…our client is anxious to continue with your client’s employment and would be very happy to meet with you and your client to discuss the issues raised and look to seek a workable solution for both parties.”

The respondent’s position is that an employer is entitled to a chance to resolve issues that are brought to its attention. In this case, the respondent was not afforded that opportunity, as the complainant resigned.

Failure to Provide Reasonable Accommodation

In their submission at the hearing, the respondent said that the complainant raised the issue of an early start and finish in February 2017, with the HR liaison person, Ms A, who suggested that she ask her manager, the MD. She never raised it with her manager and the first he heard about the request for an early start and finish was in the letter of March 28th from the complainant’s solicitor. If this matter had been brought to his attention, the MD said that he would have considered it, as there are others in the company on varying working hours.

In any event, in its reply, the respondent stated that they were willing to discuss matters and seek a workable solution.

Discrimination in Conditions of Employment

Around March 2017, the respondent said that they commenced discussions with the complainant “regarding the possibility of restructuring contractual arrangements.” This was necessary because, compared to project co-ordination, the complainant’s skills lay in the area of R&D engineering, and there wasn’t as much work available in the area of R&D. It is the respondent’s position that these discussions never reached a conclusion and “nothing was ever forced on the complainant” and “the matter remained open.”

In relation to the complainant’s allegation that the respondent asked her to research grants available to employ someone with MS, the respondent’s position is that this is a classic “red herring.” While there was a reference to a grant from Enterprise Ireland to carry out certain projects, there was no requirement for a grant to continue to employ the complainant.

Constructive Discriminatory Dismissal

The respondent’s case is that the complainant resigned and that there was no dismissal. The complainant’s letter of resignation dated April 12th was submitted in evidence. Here the complainant stated:

“Dear (name of the MD)

“Please accept this letter as notice of my resignation from the position of Project Co-ordinator and R&D Engineer at (name of respondent).

“As per the terms of my employment contract, I will continue to work for the company for the next week, completing on 18/4/2017.

“If there are any areas in particular you would want me to focus on during my notice period, please let me know.”

Referring to the case law on the need to exhaust internal procedures before taking the final step of resignation, the respondent referred to the case of A Care Worker and a Health Service Provider [2017] ADJ-00005216, where the adjudicator found that, to ground a claim for constructive dismissal, the employer’s behaviour should be,

“…so intolerable that it justifies the claimant’s resignation and constitutes something that represents a repudiation of the contract of employment. A contract of employment is like any contract in that a party to it may not simply walk away for no reason.”

Referring to Dr Mary Redmond’s book, “Dismissal Law in Ireland,” where, on the issue of constructive dismissal, Dr Redmond stated that there is,

“… something of a mirror image between constructive dismissal and ordinary dismissal…Just as an employer, for reasons of fairness and justice, must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve the grievance.”

The complainant in this case failed to exhaust her options. Before her solicitor sent the letter of March 28th 2017, the complainant never raised any concerns or grievances with her employer.   Mr Walsh submitted that it is an essential feature of her claim that the complainant must attempt to resolve her issues and exhaust internal options available to her. Aside from the MD, she could have spoken to Mr B, her day-to-day line manager, or to the chief executive, who, according to Mr Walsh, “is known to be an approachable person.”

It is the respondent’s case that the complainant was in a recruitment process with her new employer for some time before she resigned.   This is a significant multi-national and it is understood that the recruitment process is a long one. In a conversation with her line manager following her resignation, the complainant said that she had tried to get a job with this company previously, but her medical condition at the time made her unsuitable for shift work and travel. She indicated that, as she was now on new medication, she could meet the company’s criteria and take up employment with them. When she sought a reference from the MD, she indicated that her reason for leaving was to pursue a career closer in line to her skill-set.

For the reasons set out, the respondent argued that the complainant resigned because she found a job she was more interested in and that she realised that she did not meet the expected standards of the project co-ordination role.

Evidence of the MD

In his direct evidence, the MD said he has been with the company for 26 out of the 27 years it has been operating and it now employs 55 people. When he was asked by his solicitor if the company had experience of employing people with disabilities, he replied, “not a lot,” but he said that one other person had MS and there were one or two people who have speech difficulties.

The MD said that he was “very impressed” with the complainant when he interviewed her.   She is an award-winning fabricator and has an unusual degree, a combination of mechanics and electronics.   She also had two years’ experience as a project co-ordinator with a reputable company specialising in ventilation.

Sometime in the first couple of weeks of her employment, the MD said that the complainant came to his office and told him that she has MS. He said that she communicated this in a light-hearted manner and when he said something along the lines of, “that sounds serious,” she responded, “don’t worry, I won’t be knocked out or anything.” The MD said that when the complainant told him that her condition would not affect her work, he wasn’t concerned. He said that he dealt with the complainant every day and that her MS was irrelevant.

For the first few months of her employment, the MD said that the complainant needed to “get a handle on the company.” He said that technically, most companies in their business have the same processes. While her R&D and paperwork was good, the project-co-ordination aspect of the complainant’s job needed improvement. While she had a very focussed approach to R&D, he described her undertaking of projects as “plate-spinning a lot of the time.” He said that he had to chase her to follow up with clients, that he reminded her consistently to do certain things and that there were too many errors on her technical drawings. He said that the complainant had difficulties managing “site-conditional changes” and that drawings came back with the wrong information. In addition to the MD, as a mentor, the complainant had Mr B to refer to for help.

In response to the complainant’s claim that she didn’t get any formal training, the MD said that in engineering companies, there is no formal, on the job training. Once an employee is qualified, they learn on the job and processes change all the time. The MD said that most of the issues with the complainant’s work revolved around drawings and the complainant’s errors with the result that drawings had to be marked up with changes and re-drawn. She also had difficulties with co-ordination of the on-site work, and this meant that the team in the office had to do the co-ordination.

Before Christmas, the MD said that he had a serious meeting with the complainant where he pointed out these issues. He said that the complainant was “kicking herself” and she said, “I know I can do better.” She explained that she was under pressure as she was buying a house and, with her medical condition, she was having a problem getting mortgage protection insurance. The MD said that at the meeting, the complainant apologised and said that she would do better. He said that he explained to her that, while her R&D work was good, there was only so much of this work available. He told the complainant that he wasn’t in a position to pay her end-of-probation increment. The MD said it was clear at the meeting that they were not just having a chat and that he was expressing concern about the complainant’s performance.

After Christmas, the company was moving to new premises, increasing its space from 5,000 to 15,000 square feet. The MD said that he told the complainant that there might be scope for more projects in the new factory and he said that he left her with the impression that they would look for more R&D work.

In response to the complainant’s request to change her hours, the MD said that the first he heard about this was in the letter from her solicitor of March 28th.   He said that this “would never have been a problem.” He said that the complainant was always in early and, in the role of project co-ordinator, “you make your own hours.” He said that while she was employed with them, the complainant’s MS was never a problem and that she had other issues for which she got time off, such as dealing with her mortgage application, snagging the building completion of her house and preparing for her house-warming party on March 4th.

Asked about the meeting of March 23rd 2017, attended by him, Ms A and the complainant, the MD said that the purpose of the meeting was to discuss the possibility of the complainant doing more R&D. In 2009, when the canopies business was set up, the company got a grant from Enterprise Ireland and he thought it might be possible to get a grant to do more research and development. In his evidence, the MD said, “we didn’t need a grant for MS.” He said that the “struggle” with the complainant’s employment was her capacity to do the project co-ordination work. “We could not afford for her to do just R&D.” The MD said that the period between six and nine months was a “make or break” situation and that it was a coincidence that, at the same time, the complainant was changing medication.

Asked about the complainant’s allegation that, at this meeting, he said that “there’s no job for you here,” the MD said that he could have terminated the complainant’s employment the previous December, after six months’ probation. However, he said that he recalled that when he took her on, he felt that he “couldn’t have asked for a better fit for what we wanted.” He denied that he said that they would recruit someone to take over the complainant’s job. He also disagreed with the complainant’s description of him as “unapproachable” and said that this contradicted the fact that on February 17th, the complainant invited him, along with others in the company, to her house-warming party on March 4th.

When he was asked about his reaction to the letter from the complainant’s solicitor of March 28th, the MD said that he was surprised. Up to the date of receiving the letter, he said that he “had a fair bit of interaction” with the complainant.   When he got the letter, he said that he spoke to his HR advisor about the issue of reasonable accommodation and he said to the complainant in his office, “you can do whatever you need to do.” He said that, with regard to the complainant’s job, the project co-ordination part was being picked up by other people in the office and he decided that he would “have to be more patient and look for more admin work” for the complainant.

On April 5th it seems that the complainant submitted a medical cert due to illness, and shortly afterwards, she told the MD that her prospective new employer would contact him for a reference, which he provided.

When he was asked by counsel for the complainant why he didn’t formally extend the complainant’s probation, the MD said that he didn’t do so formally because “I thought I was clear.” He accepted that he should have taken formal steps to set out his concerns. He said that he didn’t seek guidance from his HR provider about how to deal with the performance issue. He said that the complainant was coached as she went along, “by me and her mentor” (Mr B). He referred to the e mails submitted in evidence which, he said, show that he was consistently chasing and following up on issues.

For the complainant, Ms Murphy said that the company’s response to the letter of March 28th, showed no indication of flexibility in respect of the complainant’s requirement for early start and finish times. The MD said that he would have been flexible if he had been asked. He pointed out that the conclusion of their letter of March 31st contains a request to the complainant and her solicitor to meet to discuss the complainant’s needs, but this never happened, because shortly afterwards, the complainant indicated that she was in the process of applying for another job.

In response to questions from Ms Murphy, the MD said that the discussion about a grant from Enterprise Ireland occurred in all likelihood on February 10th.   The complainant sent an e mail the same day in which she said, “Please see an explanation of Multiple Sclerosis and supports for employers in the documents attached.” When he was asked why he didn’t reply to this, the MD said “it didn’t register what was in the e mail response.”

The MD pointed out that the complainant sent him an invitation to her house-warming on February 17th, a week after the meeting on February 10th, when she said that she was “shocked” at his alleged suggestion that she do some research on the possibility of a grant to employ a person with MS.

The MD was asked, if there wasn’t a full-time R&D job available, what other work could the complainant do? He had said in his direct evidence that the complainant could be assigned to administration, maintenance, CE approval. Ms Murphy argued that there was “nothing actually defined.”

Concluding his cross-examination, the MD admitted to being “relieved” when the complainant resigned as he “felt a huge pressure from the solicitor’s letters and the whole situation.” He reiterated that he complainant never approached him about the possibility of reasonable accommodation for her disability. He said that he never told the complainant that he was looking for someone to replace her and a replacement only started in August 2017.

Evidence of the Company’s Accountant, “Ms A”

Ms A said that on February 21st, she called the complainant to a meeting and told her that her probation was extended until the end of March. The respondent’s letter of March 31st was submitted in evidence in which it states that, at this meeting, the complainant explained that she had been tired from a combination of a change in her medication and moving house. It appears that Ms A suggested that changing to a three or four-day week might resolve the tiredness problem. Ms A said that the complainant asked about coming in earlier and finishing earlier and Ms A replied that she would have to ask the MD.

Ms A was asked about the meeting on March 23rd, which the complainant attended with her and the MD. In response to the complainant’s suggestion that the MD said that to the complainant that “there’s no job for you here” to the complainant, Ms A said that “there’s no way” that he said that.

Evidence of the Complainant’s Manager, “Mr B”

Mr B said that he worked closely with the complainant, although his responsibility was sales and marketing. Her expertise was in metalwork and he said that she did “a fabulous job” at CE marking. He said that he would like to think that the complainant could have talked to him about any issues she was experiencing. She never raised any problems. He said that after her treatment, he would ask her how she got on.   He had no issue with her having MS.

Mr B said that when he heard where the complainant was going to work after she resigned, they had a discussion and she told him that she had applied to that company before, but that the shift and travel didn’t suit her then.

In response to questions from Ms Murphy for the complainant, Mr B said that co-ordination of a project means that you have to itemise every action, be on site and deal with the site foremen. When he was asked if the MD ever discussed the complainant’s performance with him, Mr B said that “on the drawing side, elements needed to be ironed out.”

The Primary Facts

A summary of the facts will assist with an understanding of the rationale for the conclusion on this matter.

The complainant has MS and she informed her employer about this shortly after she commenced employment in July 2017.

She was on six months’ probation and her contract provided for an extension of probation for three months.

Early on in her job, it emerged that her technical drawings were not to the standard expected of someone with her qualifications and skills. She also had difficulties managing the multiplicity of tasks required by project work and this fell back on other staff in the company. The respondent said that the complainant was very competent at R&D, which comprised a small component of her job.   There were no illness-related or absence issues associated with MS.

In December 2016, the respondent’s MD had a discussion with the complainant at which he outlined his concerns about the mistakes in her drawings and her problems managing projects competently. He confirmed that she would not get her end-of probation increase. The complainant did not argue against this, but, according to the MD, she apologised and said that she knew she could do better.

After Christmas, the MD had a brief discussion with the respondent, but as the company had just moved to a new factory, no further decisions were made about the complainant’s role.

On February 10th 2017, the complainant informed the MD that she was about to go on a new drug therapy regime. There is a contradiction in the evidence submitted by the complainant and the respondent about what occurred at this meeting regarding a grant application.   I accept the evidence of the MD that, having moved to larger premises, he considered the possibility that the company could undertake more R&D and he suggested to the complainant that Enterprise Ireland might provide grant aid for such an endeavour. I do not accept the complainant’s contention that she was asked to research the possibility of a grant to employ someone with MS.

On February 21st, in a discussion initiated by the respondent’s accountant, Ms A, the complainant was informed that her probation had been extended to the end of March. At this meeting, the complainant asked if there was a possibility of coming in to work earlier and leaving earlier. She said that she requested this because her new drug regime was making her tired in the afternoons. Ms A advised her to speak to the MD about this, which she did not do. I accept the evidence of the complainant when she said that, at this meeting, Ms A suggested that she could reduce her hours of work, but I find that there was no obligation on the complainant to accept this suggestion, and there was no further discussion about working less hours.

On March 6th, the complainant was requested to provide a letter from her doctor confirming that she was fit for work. This was in the context of her changed drug regime and the completion of her extended probation at the end March. It is evident at this point that, because of the less than acceptable standard of her technical drawings and her failure to carry out the project management job in the manner required by the respondent, the MD was considering a change in responsibilities and a new contract.

On March 23rd, the complainant attended a meeting with Ms A and the MD. From the evidence of both sides, it appears that there was no definite outcome from this meeting. According to the respondent, the purpose of the meeting was to look at the possibility of changing the complainant’s contract, because the availability of R&D work was less than a whole-time job. The complainant’s evidence is that she was given a new contract for three months, starting on March 27th.   There is no evidence that any such contract was offered to the complainant.

On March 28th, the complainant’s solicitor sent a letter alleging that she had been discriminated against on the grounds of her disability, by not offering her reasonable accommodation for her disability and alleging that her terms and conditions of employment had been changed to her detriment.

From the evidence submitted at the hearing, it appears that on April 5th, when she was absent due to illness, the complainant attended an interview or assessment for a new role with a global technology company. On April 12th, she wrote a letter of resignation and, on April 18th, she left the company to take up her new role.

The Burden of Proof

The complainant has alleged that her former employer discriminated against her by failing to provide reasonable accommodation for her illness, by changing her contract of employment to her detriment and finally, by dismissing her because she has MS. I must now consider if, based on the facts set out in her evidence, I can conclude that discrimination has occurred.

Reasonable Accommodation

In respect of reasonable accommodation and the request to change her start and finish times, when she spoke to Ms A about this, Ms A advised her to speak to the MD, but she did not do so. She said that the MD had become unapproachable. I find this difficult to accept, because the complainant’s illness had had no effect on her relationship with the MD from the time that she informed him about it shortly after she commenced employment. If she had experienced even the slightest discomfort about asking for this accommodation, she could have sent him an e mail or she could have asked Ms A or Mr B to approach him on her behalf.   In her own evidence, the complainant said that she “didn’t want to make a big issue out of reasonable accommodation.” It is clear to me, from the evidence of the complainant and the MD at the hearing, that there would have been no issue changing her start and finish times to accommodate the effect of her treatment.   I also think the complainant knew that there would be no issue about it and it is my view that she never pursued this request with any serious intent.

Change to Contract of Employment

Under the heading, “Probation,” the complainant’s contract provides her probation may be extended beyond the initial of six months, by a further three months. I accept that the meeting the MD had with the complainant in December was not flagged as a formal review of probation. Some written outcome from this meeting would have provided the clarity that the complainant required. It is evident that the increase of €1,000 which could have been awarded in December for successfully completing probation was not paid and this should have been confirmed in writing, with the reasons why.   The complainant never challenged the MD’s decision not to award her the increase, which is clearly provided for in her letter of offer. I accept the evidence of the MD when he said that this was “a serious meeting” and it is my view that, following the meeting, the complainant was left in no doubt about the MD’s concerns about her performance. The complainant’s evidence about her understanding of what occurred at this meeting was not convincing and I do not accept that the first time she heard that her probation was extended was in the e mail from Ms A on March 6th.  

No evidence whatsoever has been presented to show that the respondent intended to issue a fixed-term contract to the complainant at the end of her probation. The letter of March 28th from the respondent’s HR advisor makes it clear that they wanted to continue to employ the complainant and to “discuss the issues and look to seek a workable solution for both parties.”   It is clear to me that the MD’s objective was to find a suitable job for the complainant, that would make the best of her R&D engineering, sheet metal fabrication and other skills.   In the end, the complainant was not offered a new contract and I am satisfied that no breach of contract occurred.

Constructive Discriminatory Dismissal

Section 2 of the Employment Equality Act defines dismissal as circumstances where, “because of the conduct of the employer, the employee was or would have been entitled to terminate the contract.” In the respondent’s submission, Mr Walsh referred to an extract from “Dismissal Law in Ireland” by Dr. Mary Redmond where she describes “the mirror image” between dismissal by an employer and constructive dismissal by an employee:

“Just as an employer, for reasons of fairness and justice, must go through disciplinary procedures before dismissing, so too an employee should invoke the employer’s grievance procedures in an effort to resolve the grievance.”

In the case of this employee, she made no use of the company’s grievance procedure which was available in the employee handbook. In her evidence, she said that she was not aware that the company had a grievance procedure. I find this difficult to accept, as it appears that the Employee Handbook is set up to be accessed on the company’s intranet. Even in the absence of such a procedure, as she had engaged the help of her solicitor, she could have taken up the respondent’s offer in the HR advisor’s letter of March 31st in which they said, “our client is anxious to continue with your client’s employment and would be very happy to meet with you and your client to discuss the issues raised…”

The case law on this matter has been clear over many years. As far back as 1981, in the seminal case of Conway v Ulster Bank Limited, UD474/1981, referring to Ms Conway’s actions before her resignation, the Tribunal found that,

“…the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

This is now the established benchmark for employees who claim that they have been constructively dismissed. In the case of McCormack v Dunnes Stores, UD 1421/ 2008, in his consideration of the reasonableness of the employee’s decision to resign, the chairman of the Employment Appeals Tribunal stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his or her employers.”

In the case under consideration here, the complainant never initiated a grievance in relation to her employer’s alleged failure to accommodate her MS. She never made a complaint, formally or informally, verbally or otherwise, suggesting that she was being treated in a less favourable manner because of her disability. The fact that she did not do so leads me to doubt that she herself believed that discrimination had occurred.

Conclusion

As a person with MS, the complainant has a disability as defined at section 2 of the Employment Equality Act 1998. It is my view that her resignation on April 12th 2017 was not connected to her disability and she has failed to discharge the burden of proof required to demonstrate that her resignation arose from her employer’s failure to provide her with reasonable accommodation for her MS, or due to any intention on his part to change her contract of employment. I am satisfied that the complainant left her employment because she found a job that she had been interested in for some time and which was more suitable to her skills.

As I have found that the complainant has failed to discharge the burden of proof which requires her to establish the primary facts that can be relied upon to establish a complaint of discrimination, I find that her complaint fails.

Constructive discriminatory dismissal, burden of proof