Complainant

Respondent

Anonymised Parties

A Security Guard

A Security Firm

Act

Complaint Reference No.

Date of Receipt

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

CA-00023440-001

22/11/2018

The Complainant was employed by the Respondent as a Security Guard from 13 May, 2008 until 5 October, 2018 when his employment was terminated.

The Complainant claims that he was subjected to harassment in the workplace contrary to Section 14A of the Employment Equality Acts. The Complainant claims that he was subjected to discrimination on the grounds of disability in relation to his conditions of employment contrary to Section 8 of the Employment Equality Acts. The Complainant claims that the Respondent failed to provide him with reasonable accommodation contrary to its obligations under Section 16 of the Employment Equality Acts. The Complainant claims that he was subjected to victimisation contrary to Section 74(2) of the Employment Equality Acts. The Complainant also claims that he was discriminatory constructively dismissed from his employment.

The Respondent denies that the Complainant was subjected to harassment, discrimination in relation to his conditions of employment or victimisation. The Respondent denies that it failed to provide the Complainant with reasonable accommodation contrary to its obligations under Section 16 of the Employment Equality Acts. The Respondent denies that the Complainant was dismissed, either constructively or otherwise, from his employment.

The Complainant commenced his employment with the Respondent as a Security Guard on 13 May, 2008. Thereafter, on 20 February, 2015 the Respondent appointed the Complainant to the position of Supervisor and site Team Leader. The Complainant’s roles and responsibilities as a Security Guard, Supervisor and site Team Leader included the preparation of rosters. Rosters were completed by the Complainant on site on spreadsheets and then e-mailed to the Operations Manager for confirmation. All officers were notified of rosters by the Complainant prior to their issuing so that each officer could approve and accept their slots.

The Complainant was primarily deployed to perform the functions of his employment at Location A, wherein the Respondent provides security services to a third party. The Complainant performed well during his employment with the Respondent, was never subject to any adverse disciplinary finding, investigation or sanction, successfully passed his probationary period and was commended on his performance by the Respondent in reviews.

In September, 2016, Mr. A, Contract Manager for the Respondent, wrote to the Complainant apologising for the company’s failure to provide the necessary supports that the Complainant required to run the contract operationally on a day to day basis. Therein, Mr. A confirmed that the Respondent would endeavour to address same and provide supports going forward. Further, Mr. A confirmed that the Respondent would change the Complainant’s title from “Security Officer” to “Site Supervisor”. In response, the Complainant stated that he was happy to accept same and that he would “take care of the daily running [of the site] and deal any issues that arise. Any issues that need to be dealt with on a senior level will be passed onto you to oversee”. The Complainant maintains that such day to day tasks that he performed from that point onwards included the drafting and/or rearranging of staff rosters.

Thereafter, the Complainant was responsible for setting and/or rearranging the weekly rosters for security officers located on site. The Complainant maintains that, in his role as Site Supervisor, he assisted the Respondent in achieving successful service reviews from the third party.

In September, 2017, the Complainant was diagnosed with anxiety and suffering from panic attacks and was prescribed medication. As a result of same, the Complainant was certified unfit to work and commenced a three week period of sick leave. The Complainant duly put the Respondent on notice of this diagnosis and certified absence. In October, 2017 the Complainant returned to work and on his return liaised with the Respondent to undertake counselling to assist him in addressing his stress and anxiety.

By e-mail dated 26 October, 2017, the Complainant wrote to Mr. A, Contract Manager, raising a grievance regarding the manner in which members of the Respondent’s staff who had been removed from other sites due to underperformance or misconduct were being reassigned to Location A. However, when the Complainant complained to the Respondent about the performance of some staff members at Location A, same was not addressed adequately or at all. The Complainant stated that same was continuing to affect his health and cause him considerable stress and anxiety.

On 12 August, 2018 the Complainant separated from his partner and the following day suffered a panic attack while in work and was sent home from work. On 18 August, the Complainant attempted suicide. Immediately thereafter, the Complainant attended and received treatment from his own GP. The Complainant was diagnosed with low mood and was prescribed anti-depressants and sleeping tablets. As a result of same, the Complainant was certified unfit to work and commenced a 6-week period of sick leave. The Complainant duly put the Respondent on notice of this diagnosis.

In early September, 2018, the Respondent referred the Complainant to its occupational medical adviser who recommended that he was fit to return to work on light duties. On 24 September, 2018 the Complainant returned to work. On returning to work, the Complainant reviewed the week’s roster as prepared by Mr. B, Manager, and noted that it clashed with two of his appointments with his GP and Counsellor. As a result of same, the Complainant drafted and proposed a new roster that would facilitate his medical appointments. As mentioned above, as a Site Supervisor, this was standard practice and within the range of duties of the Complainant.

On 24 September, 2018, the Complainant showed this roster to Mr. C, Security Officer at Location A, to enquire as to whether he was satisfied with the alterations. Mr. C confirmed that he was happy with the new roster but that “the lads won’t be happy”. By e-mail dated 25 September, 2018, Mr. C wrote to the Complainant stating that he would not follow the Complainant’s proposed roster and that the original roster was not to be touched. Later, on that date, the Complainant met with Mr. C in the office and raised the issue of the proposed roster. In response, Mr. C closed and locked the office door before standing over the Complainant with clenched fists and angrily berating him, shouting: “Who the f..k do you think you are! You’re not a supervisor!”. In response the Complainant stated: “[Mr. C], I don’t need this”. In response, Mr. C stated: “I don’t give a f..k what you went through or what you have to go through”. The Complainant maintains that Mr. C was clearly referring to the health issues that the Complainant had been and continued to be dealing with. As such, the Complainant maintains that Mr. C’s conduct amounted to harassment contrary to Section 14A(1) of the Employment Equality Acts.

The Complainant maintains that this treatment had a significant negative effect on his mental health, causing him further stress and anxiety. By e-mail dated 25 September, 2018, the Complainant wrote to Mr. B, Manager and Mr. D, Regional Manager, raising a grievance regarding the manner in which he had been treated by Mr. C. The Complainant outlined the specific nature of the interaction that he had with Mr. C on the date in question and he maintains that the contents of this e-mail amounted to a written complaint of the harassment to which he had been subjected. Further, the Complainant maintains that this e-mail put the Respondent on direct notice of the impact that such behaviour was having on him given the disability with which he was suffering from as well the need that he not be subjected to such unnecessary conflict in his line of duty.

In response, Mr. B, Manager, stated that he: “noted [the Complainant’s] concerns” and that the Complainant’s position “remains as it has always been”. Mr. B stated that there “seems to be a lot of anger amongst all the staff” and that it was best to remove the roster to the Respondent’s Head Office. Mr. B stated that he would be on site the following day and that he would arrange a meeting to “clear the air”. The Complainant maintains that Mr. B failed to address adequately or at all the specific complaint regarding Mr. C’s behaviour but instead merely referred to general anger among staff. Further, the Complainant maintains that, as a result of him having raised a complaint of harassment and having outlined the effect that same was having on his health, Mr. B removed the task of roster management from his role. The Complainant maintains that same amounts to victimisation contrary to Section 74(2) of the Acts.

In response, Mr. D, Regional Manager, then stated that the “tension” was due to a TUPE issue in the workplace and that it would be best for the roster to be set by someone neutral. Again, the Complainant maintains that Mr. D failed to address adequately or at all the specific complaint regarding Mr. C’s behaviour but instead merely referring to general tension among staff. Further, the Complainant maintains that, as a result of him having raised a complaint of harassment and having outlined the effect it was having on his health, that Mr. D confirmed the removal of the task of roster management from his role. The Complainant maintains that same amounts to victimisation.

The Complainant submits that he explicitly expressed his dissatisfaction to the Respondent by e-mail dated 25 September, 2018 with the inadequate response to his complaint and highlighted the inappropriateness of him being subjected to such stressors on his return from sick leave caused by stress and anxiety. The Complainant maintains that, give same, the Respondent was obliged to immediately address his complaint and accommodate him in ensuring that he was no longer exposed to such stressors given his disability.

In response, Mr. B, Manager, stated that he would investigate the incident and take any appropriate action, if required. Mr. B stated that he would meet the Complainant when he was on duty to arrange for a formal investigation meeting into his complaint. By e-mail dated 25 September, 2018, Mr. B wrote to all Security Officers at Location A requesting that they meet the following day to discuss the TUPE situation and rostering.

On Wednesday, 26 September, 2018, the Complainant attended the meeting with all Security Officers and management, including Mr. B, to discuss the TUPE matter and rostering. Therein, Mr. B brought up the issue of rosters, stating that the function of preparing same was being passed over to Head Office. The discussions then moved on to the work environment and the Complainant attempted to apologise to all officers if it had been perceived by any member of staff that he had sought to disrespect or cause stress to anyone. The Complainant stated that he was suffering from stress and anxiety and that he was receiving help and support to address same. Shortly thereafter, the Complainant stated that he needed to leave the meeting to attend an appointment with his GP. Mr. C then got out of his chair and stated aggressively: “You’re nothing to us. You and me are f..king finished”. Mr. B witnessed this and did not do or say anything to intervene. The Complainant maintains that the Respondent failed to any measures on receipt of the Complainant’s initial complaint to ensure that he was not again subjected to such stressors given his disability and, despite members of management being present at the meeting, failed to intervene or provide any supports to the Complainant. Following the meeting, Mr. B approached the Complainant and asked him whether he wished to lodge an official complaint. The Complainant confirmed that he did. Despite explicitly informing Mr. B of same, Mr. B failed to take any action what so ever to investigate or address same.

Later on, 26 September, 2018, the Complainant met with Mr. B at a local hotel and enquired into how the Respondent was going to address his complaints and what occurred at the meeting on 26 September, 2018. In response, Mr. B stated that the Complainant “kind of caused” the altercation by talking over people. The Complainant stated that he was not talking over people but apologising for any way in which he may have caused a toxic environment. The Complainant maintains that he had twice raised complaints about the harassment he had been subjected to by Mr. C and the effect same was having on him given his disabilities, of which Mr. B himself had been witness to one such event. However, despite same, the Respondent failed to address same adequately or at all and even blamed the Complainant himself for having been subject to such conduct.

The Complainant maintains that same had a further devastating effect on his mental health, causing him further stress and anxiety and, as a result of the foregoing, on 2 October, 2018, the Complainant began to suffer from chest pain and dizziness. The Complainant attended an emergency appointment and was certified as unfit to work.

By e-mail dated 2 October, 2018, the Complainant wrote to Mr. D, Regional Manager, raising a further written grievance regarding the manner in which he had been treated at the meeting on 26 September, 2018. The Complainant maintains that he again explicitly expressed his dissatisfaction with his continued exposure to stressors of which he was unable to tolerate given his disability as well as the inadequate response from the Respondent to his complaints, particularly given that management itself had now witnessed same first hand. The Complainant maintains that he also again highlighted the inappropriateness of him being subjected to such stressors upon his return from sick leave caused by stress and anxiety. The Complainant maintains, that give same, the Respondent was obliged to immediately address his complaint and accommodate him in ensuring that he was no longer exposed to such stressors given his disability.

By e-mail dated 2 October, 2018, Mr. D (Regional Manager) replied to the Complainant, stating that there was a lot of “emotion, sensitivity and frustration” regarding rosters, arising from the team’s “challenging personal situations and circumstances”. Mr. D stated that the Respondent was “doing [its] best” and that it was prudent to pass the rostering function to Head Office. The Complainant maintains that Mr. D again failed to address adequately or at all the specific complaints raised by him, instead merely referring to general anger among staff.

By e-mail dated 5 October, 2018, the Complainant wrote to Mr. D, Regional Manager, and Mr. B, Manager, resigning his employment with the company. The Complainant submits that applying either the reasonableness test or the contract test that he was constructively dismissed due to manner in which he was harassed and discriminated against by the Respondent on the grounds of disability; the manner in which the Respondent employed a flawed, inefficient and ultimately toothless grievance procedure; the manner in which the Respondent victimised him for having raised complaints in relation to discrimination; and the manner in which the Respondent conducted itself in a way likely to destroy the relationship of mutual trust and confidence having regard to his physical psychological vulnerability. It was submitted that this behaviour was so unreasonable as to leave the Complainant with little choice other than to resign his employment and also amounted to a repudiatory breach of the contract of employment, such that the Complainant was entitled to treat the contract as terminated and himself dismissed.

The Complainant relied upon the following cases in support of its position, namely: Connacht Gold Cooperative Society -v- A Worker EDA0822; Flynn -v- Emerald Facilities Services DEC-E2009-065; Ntoko -v- Citibank [2004] ELR 116; Dublin Corporation -v-Gibney’s EE5/1986; Minaguchi -v- Wineport Lakeshore Restaurant; A technology Company -v- A Worker EDA0714; An Employee -v- A Broadcasting Company [2012] ELR 88; An Employee (Mr. O) -v- An Employer (No. 2) [2005] ELR 132; Humphries -v- Westwood Fitness Club [2004] ELR 296; A Government Department -v- A Government Worker ADE0516; Mr. A -v- A Government Department EDA061; Mr. O -v- Industrial Waste Management Company [2014] 25 ELR 106; Nano Nagle School -v- Marie Daly [2018] IECA 11; An Employer -v- A Worker (Mr. O)(No. 2) EED0410.

The Respondent refutes the Complainant’s complaint in its entirety and disputes the claims that he was subjected to discrimination on the grounds of disability in relation to his conditions of employment; that there was a failure to provide him with reasonable accommodation; that he was subjected to harassment and/or victimisation or that he was subjected to discriminatory dismissal. The Respondent’s position is that the Complainant was not discriminated against contrary to the Employment Equality Acts.

The Respondent submits that contrary to the Complainant’s position, the company acted in a caring, compassionate and dutiful way to the Complainant who was highly regarded within the company. The Respondent contends that Mr. B, Manager and Mr. D, Regional Manager, who were closest to the situation, particularly during the months of August, September and October, 2018 were not only sympathetic to the Complainant’s position but fully wanted to do the right thing by him to ensure his safety and when the time came, a return to work that was supported by those in the medical profession that deemed him “fit to return”. The Respondent submits that an independent medical adviser assessed the Complainant on 3 September, 2018 prior to his return to work and in the said assessment the Complainant is quoted as stating that his current episode of illness related to personal issues and also referred to his expressed desire to return to work and the fact that he had no issues with his colleagues or the company.

The Respondent disputes the claim that there was a failure to provide the Complainant with reasonable accommodation and contends that if was fully aware of his medical condition and allowed him to return to work on reduced hours in September, 2018 to accommodate his disability. The Respondent submits that it also made arrangements for the Complainant to obtain counselling from an appropriate professional body prior to his return to work after his attempted suicide in August, 2018.

The Respondent acknowledges that there were issues amongst staff following the Complainant’s return to work on 25 September, 2019, namely:

·         Rosters had been dealt with differently during the Complainant’s absence from work;

·         All of the staff had been recently notified that their roles were due to transfer to a new employer in November, 2018.

The Respondent contends that the task of managing rosters was removed from the Complainant after the incident occurred with Mr. C in order to accommodate the Complainant and ensure that he was not subjected to any stressful situation which may have been detrimental to his disability. The Respondent denies that this measure amounted to an act of victimisation contrary to Section 74(2) of the Act.

The Respondent contends that the Complainant chose not to go down the route of raising a formal grievance, and therefore, the company did not have an opportunity to investigate or address the alleged harassment prior to his resignation. The Respondent submits that there is a Company/Union agreement in place within the company which details a very clear procedure for dealing with allegations of harassment and bullying in the workplace. The Complainant was fully aware of the existence of this procedure. However, he failed to utilise and fully exhaust same in relation to his complaint of harassment by Mr. C.  

The Respondent submits that the Complainant, by resigning from his position on 5 October, 2018 (following five shifts since his return to work) and not responding to the Regional Manager’s e-mail which afforded him the opportunity to reconsider this decision, failed to exhaust the internal grievance procedures in relation to his grievance. In doing so, the Complainant resigned from his position of his own volition and was not subjected to a constructive discriminatory dismissal.

The Respondent adduced evidence from Mr. A, Contracts Manager, Mr. B, Manager, and Mr. D, Regional Manager, in relation to the matters concerning the alleged discrimination in the instant case.

Evidence of Mr. A, Contracts Manager

Mr. A stated that the Complainant was the most senior officer on the site where he was assigned to work and would report any issues of concern to him. Mr. A stated that he had interaction with the Complainant in September, 2016 in relation to his request for formal recognition for the supervisor role that he had been performing. Mr. A had a meeting with the Complainant on 20 September, 2016 and it was agreed that his title would be changed from security officer to site supervisor. Mr. A stated that he had further interaction with the Complainant in September/October, 2017 after he had sought support in relation to staff performance related issues. Mr. A stated that he provided relevant support to the Complainant in relation to this matter and that the issues raised were dealt with and resolved at that juncture. Mr. A stated that all of the Respondent’s employees, including the Complainant, were made aware of the existence of the company’s anti-harassment policy and grievance procedures and that these policies were readily accessible on the internal computer system.  

Evidence of Mr. B, Manager

Mr. B stated that he had regular contact with the Complainant as part of their respective roles within the company and that he was aware the Complainant had attempted suicide on 10 August, 2018. Mr. B stated that he had a very good working relationship with the Complainant and had a lot of interaction with him during his absence on sick leave out of concern for his wellbeing. Mr. B stated that he fully understood what the Complainant was going through at that junctures as he had experienced a similar situation in his own family and his primary concern was for the Complainant’s welfare. Mr. B recommended to the Complainant that he should seek counselling prior to his return to work.

Mr. B stated that the Complainant informed him about the incident that occurred with Mr. C on 25 September, 2018 and that he undertook to investigate the matter. Mr. B stated that there was a meeting arranged with staff, including the Complainant, on 26 September, 2018 to discuss the pending transfer of the business to another contractor. Mr. B stated that this was a very quick meeting and that the Complainant sought to talk to the other staff members at the end of the meeting. The Complainant initially apologised to the other staff members for the issues relating to the roster but then proceeded to apportion blame on them for what had happened which resulted in certain staff members “fighting back” at him. Mr. B stated that the Complainant then “stormed” out of the meeting after this interaction with the other staff members. Mr. B stated that he arranged an informal meeting with the Complainant later that day at a local hotel to enquire about his wellbeing in light of what had happened at the earlier meeting.

Mr. B stated that the other staff members on site had drafted the rosters and sent them to Head Office for approval while the Complainant was absent on sick leave. Mr. B accepted that there was tension among staff in relation to the rostering arrangements but denied that he had any interaction with them in relation to the rosters during this period. Mr. B stated that the responsibility for roster management was removed from the Complainant after the tensions arose following his return from work. He denied that this action was taken to penalise the Complainant and stated that the measure was intended to accommodate him by removing the issue that was causing and exacerbating his anxiety and stress.

Mr. B stated that he was in the process of carrying out an investigation in relation to the Complainant’s complaint of harassment arising from the incident involving Mr. C on 25 September, 2018. Mr. B stated that he had taken a written statement from Mr. C following the meeting on 26 September, 2018 but did not get an opportunity to take a formal statement from the Complainant as he went absent on sick leave following this meeting. Mr. B stated that all of these events occurred in a relatively short timeframe and that he did not have sufficient time to conclude the investigation in relation to the Complainant’s grievance prior to his resignation on 5 October, 2018.

Evidence of Mr. D, Regional Contracts Manager

Mr. D stated that the Respondent was very supportive of the Complainant during his absence on sick leave following his attempted suicide and that the company made arrangements for him to avail of counselling prior to his return to work. Mr. D stated that he received an e-mail from the Complainant on 2 October, 2018 during his absence on sick leave in which the Complainant made reference to the alleged harassment that occurred at the meeting on 26 September, 2018. Mr. D stated that management in accordance with the internal procedures were encouraged not to contact or discuss with the Complainant about any matters relating to the investigation in relation to his grievance while he was absent on sick leave. Mr. D stated that he was fully aware that the investigation into this matter was being conducted by Mr. A, Manager, that statements had been sought from Mr. C and another worker. Mr. D stated that he received a further e-mail from the Complainant on 5 October, 2018 in which he tendered his resignation. Mr. D immediately replied to this e-mail and requested the Complainant to reconsider his position and indicated that he was more than willing to meet him to work through the issues. However, the Complainant failed to respond and resigned from his employment.

In summary, the Respondent submits that the Complainant was treated with care and compassion by management during his absence while on sick leave and following his return to work. The Complainant was facilitated to return to work following assessment by an independent medical advisor and in consultation with his GP. The Respondent engaged in discussions with the Complainant about his medical conditions prior to his return to work and he was accommodated by allowing him to return on reduced hours. The Respondent had an established grievance policy in place to deal with allegations of bullying and harassment in the workplace which was communicated to all staff, including the Complainant. The Respondent was in the process of addressing the Complainant’s grievance in relation to the alleged harassment by Mr. C arising from issues relating to the rosters. However, these events occurred in a very short timeframe (i.e. over two days) and the Complainant took the decision to resign before the Respondent had an opportunity to complete its investigation under the internal procedures.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.   If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.   In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

Accordingly, the issues for decision in this case are:

      (i)            Whether or not the Complainant was subjected to discriminatory treatment on the grounds of disability in relation to his conditions of employment.

    (ii)            Whether or not the Respondent failed to provide the Complainant with reasonable accommodation contrary to Section 16 of the Acts.

   (iii)            Whether or not the Complainant was subjected to harassment pursuant to S.14A of the Acts.

   (iv)            Whether or not the Complainant was constructively discriminatorily dismissed from his employment.

    (v)            Whether or not the Complainant was subjected to victimisation contrary to Section 74(2) of the Acts.

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.

Discrimination on Disability Ground

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) ...”. Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, ...     that one is a person with a disability and the other either is not or is a person with a different disability".

The definition of disability in Section 2(1) of the Acts is as follows:

“disability” means—

(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 judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”

The definition of a disability has been interpreted in an extremely broad manner and I note that there is established precedent from the Labour Court that anxiety and stress can fall within the definition of disability under the Acts. In considering the definition of disability in the Employment Equality Acts in the case of A Government Department v A Worker EDA 094 the Labour Court held that: “The Court must take the definition of disability as it finds it. Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of Ireland v Purcell [1989] IR 327). Nevertheless, no statute can be construed so as to produce an absurd result or one that is repugnant to common sense. That common law rule of construction has now been given statutory effect by s.5(1) of the Interpretation Act 2005. It would appear to the Court that if the statute were to be construed so as to blur the distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other, it could be fairly described as an absurdity.”

In the instant case, the Complainant adduced evidence that he suffered from severe stress, anxiety and depression manifesting in suicidal ideation and a suicide attempt, that caused him to be certified over prolonged periods of time as medically unfit to work. I am satisfied that the Complainant’s position on this matter is supported by relevant medical evidence and in this regard, I have taken cognisance of the fact that the report from the Occupation Health Physician who assessed the Complainant prior to his return to work in September, 2018 notes that “[The Complainant] suffers from a history of mental illness”. In the circumstances, I find that the Complainant’s medical condition constitutes a disability within the meaning of Section 2(1) of the Acts. Furthermore, I note that it was common case that the Complainant, at the date of termination of his employment and prior to that date, suffered from a disability within the meaning of the Act.

The Complainant contends that he was subjected to discrimination on the grounds of his disability and it is alleged that, in his attempts to return to work, he was not treated in a supportive or sympathetic manner and it was apparent that the Respondent wished to make his return to working life impossible; that the Respondent subjected the Complainant to harassment and ridicule regarding his health; refused to consider accommodations being made to facilitate the Complainant’s employment; and failed to afford the Complainant the benefit of fair, reasonable and effective internal remedial process in respect of his complaints.

The Complainant contends that the appropriate comparator is Mr. D, Regional Manager, who it is claimed shared similar characteristics to the Complainant, other than his disability, but was not subjected to the aforementioned treatment in relation to his conditions of employment.

Having considered the evidence, I am satisfied that the Complainant has failed to establish facts from which it could be inferred that the named comparator, Mr. D, was, or would have been treated more favourably than him in relation to aforementioned matters. The Complainant has conflated the claims in relation to the alleged harassment and failure to provide reasonable accommodation with a claim of direct discrimination on the grounds of disability and has failed to adduce any significant evidence to support his claims that the alleged treatment was discriminatory on the grounds of his disability. In the circumstances, I find that the Complainant has failed to establish a prima facie case of direct discrimination on the grounds of disability in relation to his conditions of employment. Accordingly, this element of his complaint fails.

Reasonable Accommodation

The next element of the Complainant’s complaint that I must consider relates to the claim that the Respondent failed to provide him with reasonable accommodation in accordance with its obligations under Section 16 of the Acts. The Complainant contends that the Respondent failed to conduct itself in a proactive manner in acquiring all relevant information and considering appropriate measures that might be necessary in order to allow him to return to work from periods of sick leave arising from his disability. The Complainant contends that the Respondent failed to give proper consideration to his requests for accommodations and failed to carry out a risk assessment in relation to his role.

Section 16(3) of the Acts sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. Therefore, for reasonable accommodation to arise, it is necessary for an employee not only to have a disability within the meaning of the Acts but also that appropriate measures are necessary in order for that employee to be fully competent and capable of undertaking their duties.

The Supreme Court in the case of Nano Nagle School -v- Daly [2019] IESC 63 has provided clarification regarding the nature of the obligation on employers to consult with employees when considering the provision of reasonable accommodation within the meaning of Section 16 of the Acts. In this judgement MacMenamin J. held that: “Finally, it should be noted that the Court of Appeal found that there was no justification for the rule outlined in the Circuit Court decision of Humphries v. Westwood [2004] 15 ELR 296. In Humphries, Dunne J., then a judge of the Circuit Court, held that, in order to form a bona fide belief that a claimant was not fully capable of performing the duties for which she was employed, a respondent employer would normally be required to make adequate enquiries to establish fully the factual position in relation to the claimant's capacity. The nature of the enquiries would depend on the circumstances, but would, at minimum, involve looking at medical evidence to determine the level of impairment arising from the disability, and its duration. If it was apparent that the employee was not fully capable, the respondent was required, under s.16(3), to consider what, if any, special treatment or facilities might be available, by which the employee could become fully capable, and account was to be taken of the cost of such facilities or treatment. But Dunne J. went on to hold that such an enquiry could only be regarded as adequate if the employee concerned was allowed a full opportunity to participate at each level, and, on the facts of that case, to present relevant medical evidence, and submissions ….. Ryan P. considered Humphries in the light of subsequent English case law …. In his view, a statutory duty was “objectively” concerned with whether the employer complied with an obligation to make reasonable accommodation. In this State, however, our courts have always attached importance to fair procedures where employment is at stake …. I respectfully disagree with the Court of Appeal's conclusion on this issue, but I do not go so far as to say there is a mandatory duty of consultation with an employee in each and every case, the section does not provide for this, still less does it provide for compensation simply for the absence of consultation in an employment situation. But, even as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the Act. But absence of consultation cannot, in itself, constitute discrimination under s.8 of the Act”.

In essence, the Supreme Court in this judgement has held that while there is no statutory obligation to consult with the employee it would be wise for an employer to engage in “meaningful participation” in discharging its obligations under Section 16 of the Act.

In the present case, it was not in dispute that the Complainant was absent from work for a number of periods during the latter period of his employment as a result of a number of conditions related to his disability, namely stress, anxiety and depression. The Complainant adduced evidence that he was absent from work in September/October, 2017 for three weeks due to work related stress and anxiety which he contends had occurred as a result of the Respondent’s failure to provide him with adequate support and assistance in dealing with issues relating to the underperformance and misconduct by certain staff under his supervision. The Respondent disputes the Complainant’s contention that it failed to provide him with the relevant supports in relation to these matters and contends that all such issues were satisfactorily addressed at the material periods in question.

I note that the Complainant has not put forward the case that his absence from work on this occasion was attributable to any failure on behalf of the Respondent to provide appropriate measures to accommodate his disability within the meaning of Section 16 of the Acts. However, it is clear that there had been a number of work-related incidents prior to the Complainant’s attempted suicide and absence from work in August, 2018 which had resulted in an exacerbation of the symptoms associated with his disability which ultimately resulted in his absence from work and inability to carry out his duties during the material period in question. In the circumstances, I am satisfied that the Respondent was clearly aware prior to the Complainant’s absence in August/September, 2018 that the symptoms associated with his disability could be exacerbated by workplace stressors connected to his role as Supervisor.

It was not in dispute that the Respondent responded in an empathetic manner towards the Complainant during the weeks following his attempted suicide and, in this regard, it is noted that the Respondent made arrangements for him to obtain professional counselling prior to his return to work. In addition, it must also be noted that the Complainant acknowledged the care and concern shown to him by his Manager, Mr. B, during the period of his six-week absence from work in September/October, 2018.  

However, notwithstanding the empathy shown by the Respondent to the Complainant during his absence from work during this period, I am satisfied that there was a failure on the part of the Respondent to engage in any meaningful consultation with the Complainant prior to his return to work to establish if he required any accommodations on account of his disability to enable him to fully discharge his duties. I note that the Respondent referred the Complainant to an Occupational Health Physician prior to his return to work, who in consultation with the Complainant’s GP, certified him fit to return to work on light duties. I am satisfied that given the nature of the Complainant’s psychological disability, and having regard to his previous absences as a result of work related stress and anxiety, it was incumbent on the Respondent to consult with him to establish if there was any stressors in the workplace which may affect his ability to effectively carry out his duties on his return to work. I find that the Respondent failed to engage in any such process of consultation or to make any relevant enquiries to establish the Complainant’s capacity prior to his return to work.

Having regard to the evidence adduced, it is clear that one such stressor affecting the Complainant in the workplace related to his responsibilities concerning the preparation of rosters. I am satisfied that this issue was a source of much tension among the staff under the Complainant’s supervision and was at the root of the incident that occurred with Mr. C on 25 September, 2018. The Complainant contends that he was subjected to harassment by Mr. C during this incident and subsequently made a complaint to management about the threatening behaviour and intimidation to which he was subjected on this occasion. The Complainant adduced evidence that this incident exacerbated the symptoms of stress and anxiety associated with his disability and ultimately impacted on his ability to carry out his duties.

I note that the Respondent’s response to this incident was to remove the responsibility for the preparation of rosters from the Complainant and transfer this duty to head office. However, it is clear that the decision to remove the rosters from the Complainant was a unilateral decision by management which was taken in the absence of any consultation with the Complainant. The Complainant contends that the removal of the rosters was an act of victimisation for having made a complaint to management about the effect that this incident was having on his disability. Having regard to the evidence adduced, I do not accept that the Respondent’s actions in removing the rostering from the Complainant amounted to victimisation but rather it would appear that this decision was taken by management in reaction to the incident that occurred between the Complainant and Mr. C with the intention of diffusing the situation.

However, notwithstanding the taking of this action, I find that the manner in which the Respondent dealt with this issue constitutes a further example of its failure to engage in any meaningful consultation with the Complainant to establish fully the factual position in relation to his capacity and the impact which the incident had on his disability. I am of the view that if the Respondent had engaged in any meaningful consultation with the Complainant in relation to the issue of reasonable accommodation prior to his return to work in September, 2018 that the issue in relation to rosters may well have been identified as a potential stressor and appropriate measures could have been put in place at that juncture to address such matters.

It was common case that there was a further incident of alleged harassment between the Complainant and Mr. C occurred on 26 September, 2018 and it is clear from the evidence adduced that the combined effects of this incident and the incident that occurred the previous day had a detrimental effect on the Complainant’s health which resulted him in taking a further sick absence due to an exacerbation of the symptoms of stress and anxiety associated with his disability.

In the circumstances, I find that the Respondent failed in its obligations to provide reasonable accommodation to the complainant as a person with a disability in accordance with the provisions of section 16(3) of the Acts. Accordingly, I am satisfied that the Complainant was discriminated against by the respondent in respect of a failure to provide him with reasonable accommodation for his disability.

Harassment

The next issue that I must consider is whether or not the Complainant was subjected to harassment pursuant to Section 14A of the Acts. In this regard, I am required to consider two aspects of the evidence, namely:

(a)    Whether the Complainant has established on the balance of probability that he was harassed in terms of the incidents described in his evidence. This includes an evaluation as to whether the events the Complainant describes took place, and if so, were of sufficient significance to establish a prima facie case of harassment.

(b)    If the answer to the question in (a) above is in the affirmative, did the Respondent take reasonable action to prevent the harassment occurring in the workplace. This includes considering the extent to which the Respondent was aware of the Complainant’s experiences, to enable it to deal with the Complainant’s complaint of harassment and if it was aware whether it took appropriate action to enable it to rely upon the defence in Section 14A(2) of the Acts.

The Complainant maintains that the conduct he suffered at the hands of Mr. C, who allegedly explicitly referenced and ridiculed the Complainant’s issues with his health amounted to harassment as same was unwanted conduct relating to his disability and had the purpose and effect of violating his dignity and creating a hostile, degrading, humiliating and offensive environment for him in the workplace. The Complainant contends that the manner in which the investigation of his complaints of harassment was dealt with by the Respondent was wholly ineffective and that it failed to take any remedial action or steps to address the harassment.

The Respondent maintains that it acted upon the Complainant’s complaint of harassment immediately upon becoming aware of the matter and that it was in the process of carrying out an investigation in relation to the complaint prior to the Complainant’s resignation on 5 October, 2018. The Respondent contends that the first incident of harassment was alleged to have occurred on 25 September, 2018 and that it did not have sufficient time to conclude the investigation in relation to this matter in such a short timeframe prior to the Complainant’s resignation. The Respondent maintains that it took all such steps as were reasonable to prevent any such harassment occurring and re-occurring and in this regard relies on the defence in Section 14A(2) of the Acts. The Respondent also maintains that it has sufficient policies and guidelines in place to ensure a harassment-free workplace for all its employees.

Section 14A(7)(i) of the Act defines “harassment” as any form of unwanted conduct related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

The Complainant adduced evidence in relation to two separate incidents involving his interaction with Mr. C which occurred on 25 September, 2018 and 26 September, 2018 and which he contends amounted to harassment. In considering the events that occurred on these dates, it is important to note that the Complainant, in his role as Site Supervisor, had responsibility for the preparation of rosters for the staff on site. As I Have already adverted to above, it is clear that there were significant tensions among staff on this site in relation to rostering arrangements and that matters related to this issue were at the forefront of the interactions that took place between the Complainant and Mr. C on both of these occasions.

In relation to the first incident on 25 September, 2018, the Complainant had returned to work the previous day after his absence on sick leave following his attempted suicide. The Complainant contends that he met with Mr. C in the office and raised the issue of the proposed roster and in response Mr. C closed and locked the door before standing over him with clenched fists and angrily berating him, shouting “Who the f..k do you think you are! You’re not a supervisor”. The Complainant contends that he responded “[Mr. C] I don’t need this” to which Mr. C stated “I don’t give a f..k what you went through or what you have to go through”. The Respondent was not in a position to dispute the actual occurrence of the alleged incident of harassment on this date. Mr. C did not attend the hearing to give evidence in relation to the matter, and therefore, the Complainant’s evidence in relation to the alleged incident of harassment was uncontested.

I have found the Complainant’s evidence to be very credible in relation to his interaction with Mr. C on 25 September, 2018 and I accept his uncontested account of the events which he claims occurred during this incident. Furthermore, I am satisfied that the language used by Mr. C was clearly a reference to the Complainant’s mental health issues and was therefore directly linked to his disability. It is clear that this incident of inappropriate, offensive and unwelcome behaviour by Mr. C had the effect of violating the Complainant’s dignity and subjecting him to a hostile and intimidating workplace. I therefore, find that the Complainant has established a prima facie case that he was harassed by a fellow employee in the workplace on the grounds of his disability contrary to Section 14A of the Acts.

In relation to the second incident on 26 September, 2018, it was not in dispute that the Complainant and other staff members, including Mr. C, were requested to attend a meeting on this date at the behest of their Manager, Mr. B. The Complainant was informed by e-mail on 25 September, 2018 that the purpose of the meeting was “to discuss the contract, TUPE and roster for the remaining weeks of the contract”. The Complainant adduced evidence that he was subjected to further aggressive and intimidatory behaviour by Mr. C during this meeting which included Mr. C stating to him that: “You’re nothing to us! You and me are f..king finished”. The Respondent adduced evidence from Mr. B and I note that he did not dispute that Mr. C had behaved in such a manner towards the Complainant at this meeting, albeit that Mr. B contends that the Complainant had provoked the incident by “talking over” the other staff members at the meeting. I have found the Complainant’s evidence on this matter to be very compelling and I accept that Mr. C’s language and behaviour was totally inappropriate and had the effect of subjecting him to further hostility and intimidation in the workplace. However, I have not found that there was any nexus between the inappropriate behaviour attributable to Mr. C in relation to this incident and the Complainant’s disability. In the circumstances, I find that Mr. C’s behaviour towards the Complainant in respect of this incident cannot be held to constitute an act of harassment within the meaning of Section 14A of the Acts. Notwithstanding the foregoing, I accept the Complainant’s evidence that the treatment to which he was subjected on this occasion, when taken in conjunction the previous incident of harassment on 25 September, 2018, had a seriously detrimental effect on his mental health thereby causing him further stress and anxiety.

Section 14A(2) of the Acts provides that it shall be a defence for an employer to show that it took such steps as are reasonably practicable to prevent harassment from occurring in the first place and in circumstances where such harassment has occurred that it took action to reverse its effect. The Labour Court has previously held that in order for an employer to avail of the first component of this defence it must show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment or sexual harassment occurred and that the policy was effectively communicated to staff. In the case of AHotel –v- A Worker EDA0915 the Labour Court held that: “….. an employer must be conscious of the possibility of sexual harassment occurring and have in place reasonable measures to prevent its occurrence as well as policies and procedures to deal with such harassment where it is found to have taken place. This requires the employer to show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred and that the policy was effectively communicated to all employees. Moreover, management personnel should be trained to deal with incidents of harassment and to recognise its manifestations”.[1]  

In the present case, I note that the Respondent had a Dignity and Respect at Work Policy in place to deal with harassment and sexual harassment in the workplace. The Employment Equality Act, 1998 (Code of Practice) (Harassment) Order, 2012[2] is intended to give practical guidance to employers and employees, as well as their respective representatives, on what is meant by harassment in the workplace and how it may be prevented and while it does not impose any legal obligations in itself nor is it an authoritative statement of the law on the issue.

I accept that the Respondent’s policy and procedures on harassment generally conform to the standards set out in the Code of Practice. However, it is not sufficient to avail of the defence under Section 14A(2) for an employer simply to have these policies in place if it does not take all reasonable efforts to effectively communicate the existence of such policies to its workforce. The Respondent adduced evidence that the company’s policy and procedures on harassment are included in the Company Handbook which is distributed to all employees and that they are also readily accessible to all employees on the internal computer system. The Respondent contends that the Complainant and all other employees have been made fully aware of the existence of the company’s policy and procedures on harassment. The Complainant was not in a position to dispute the Respondent’s evidence on this point and accepts that he received a copy of the Company Handbook and was aware of the existence of the Respondent’s anti-harassment policies. On balance and having regard to the submissions of the parties and the evidence adduced, I am satisfied that the Respondent’s policy and procedures on harassment were effectively communicated to its staff.  

The second element of the defence at Section 14(A)(2) is where harassment has occurred that the employer took action to reverse its effect. This involves an evaluation of what action the Respondent took once it became aware that an employee was making a complaint of harassment under the Acts (or Policy) and how promptly it took those actions.

In the case of Limerick City Council -v- Martin Mannering EDA1210 the Labour Court held that: “Consequently, unless the defence provided for by s. 14A(2)(a) is made out the Respondent is liable to the Complainant by operation of s. 14A(1)(a) of the Act. That raises a question as to the necessary ingredients of the defence provided for at s. 14A(2)(a) of the Act. On a plain reading of paragraph (a) of subsection (2) what is required is that the Respondent proves that it took steps that are reasonably practical to prevent the perpetrator from harassing the victim. In a situation where there is continuing harassment the defence will normally succeed or fail on the adequacy of the employer’s response to any complaint made by the victim. Hence, where an employer fails to conduct an adequate investigation, or fails to apply adequate sanctions on a harasser, the employer will be fixed with liability for any subsequent acts of harassment.”

The Complainant contends that the investigation by the Respondent into his complaints of harassment was wholly ineffective and that it failed to take any remedial action to prevent a reoccurrence of the harassment after he had made the initial complaint. The Respondent disputes that the Complainant raised a formal grievance under its internal harassment policy in relation to the incidents involving Mr. C, but contends nonetheless, that the matter was being investigated by the Complainant’s Manager, Mr. B in the very limited timeframe available prior to his resignation.

Having regard to the evidence adduced, I cannot accept the Respondent’s contention that the Complainant did not raise a formal grievance in relation to the alleged harassment or that the Respondent was not fully aware of the Complainant’s expressed wishes that the matter be treated as such arising from his written and verbal communications with management during the two week period after the incidents had occurred. In reaching this conclusion, I have taken cognisance of the fact that the Complainant immediately reported the incident of harassment involving Mr. C, which occurred on 25 September, 2018, to his Manager, Mr. B and the Regional Manager, Mr. D by e-mail on this date and requested that the matter be investigated. I also note that the Complainant informed Mr. B in the immediate aftermath of the second incident with Mr. C occurred during the meeting on 26 September, 2018 that he wished to raise a formal complaint in relation to the alleged harassment. The Complainant also sent a further e-mail to Mr. D, Regional Manager, on 2 October, 2018 to complaint about his treatment by Mr. C during the incident on 26 September, 2018 and to express his upset that this incident had been witnessed by his Manager (Mr. B) who failed to take any action in relation to the matter. The Complainant also referred to the fact of having raised a grievance in relation to these matters in his letter of resignation to the Respondent on 5 October, 2018 where he stated that “I having raised my grievances on both occasions, yet no real effort was made to address my concerns”.

Furthermore, I am satisfied that the Respondent’s contention that the Complainant had not raised a formal grievance in relation to the harassment was not consistent with the oral evidence adduced by Mr. B, Manager at the oral hearing. I note that Mr. B confirmed at the hearing that he had been appointed to investigate the Complainant’s complaint of harassment and maintained that he was in the process of conducting this investigation when the Complainant resigned from his employment.

Having regard to the evidence adduced, I find that there were a number of critical shortcomings and fundamental failings in terms of the manner in which the investigation was conducted by the Respondent. In this regard, I find that the Respondent failed to inform the Complainant that a formal investigation was being conducted into the alleged harassment; the Complainant was not provided with any information in relation to the procedure or timeframe within which the investigation would be conducted; the Complainant was not formally interviewed or was not afforded an opportunity to give a statement in relation to the incident; the investigator, Mr. B, failed to provide copies of the statements taken from Mr. C and Mr. E (a colleague of the Complainant and witness to the incident on 26th September, 2018) to the Complainant.

I also find that the Respondent failed to take appropriate remedial action to ensure that the Complainant would not be exposed to further harassment in the workplace after he had made a complaint arising from the incident with Mr. C on 25 September, 2018. In this regard, I find it totally inexplicable that the Respondent failed to put even the most basic of measures in place in order to separate the Complainant and Mr. C in the workplace pending the conclusion of the investigation. I fully accept that the Complainant’s grievance was still under investigation at the material time in question and that Mr. C was also entitled to due process and fair procedures. However, I find that it was totally remiss of Mr. B (Manager) to instruct the Complainant to attend a meeting with Mr. C and two other colleagues on 26 September, 2018 in the immediate aftermath of the incident of harassment that had occurred the previous day. I am satisfied that the Respondent was fully aware of the precise nature of the Complainant’s disability and his psychological vulnerability following his return to work in the aftermath of his suicide attempt. It should have been abundantly clear to Mr. B that the Complainant’s attendance at this meeting could potentially expose him to further harassment and thereby exacerbate his psychological vulnerability. As matters transpired, this proved to be the case as the Complainant was subjected to a further incident of hostile and inappropriate behaviour at the hands of Mr. C at this meeting.  

Having regard to the foregoing, I find that the Respondent cannot avail of the defence provided by Section 14A(2) of the Acts and it is therefore liable for the harassment suffered by the Complainant. Accordingly, I find that the Complainant is entitled to succeed in this element of his complaint.

Constructive Dismissal

The next element of the Complainant’s complaint which I must consider relates to the claim that he was discriminatorily constructively dismissed from his employment.

Section 2(1) of the Acts defines “dismissal” as including:

"the termination of a contract of employment by an employee (whether prior notice of termination was or was not given to the employer) in circumstances 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 .... ".

Inthe case of An Employer -v- A Worker (Mr. O No. 2)[3]the Labour Court comprehensively addressed the issue of constructive dismissal under employment equality legislation. It noted that the definition was practically the same as the definition of "dismissal" contained in the Unfair Dismissals Acts and held that the tests for constructive dismissal developed under that legislation i.e. the "contract" test and the "reasonableness" test were applicable tests under the Employment Equality legislation. In this case the Labour Court, when referring to the “reasonableness test”, held that: “There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts him or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer’s conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving. Further, the employer may commit a breach of contract which may not be of such a nature as to constitute repudiation but is so unreasonable as to justify the employee in resigning there and then.”

The Labour Court further held in this case, when referring to the “contract test”, that: “It is not suggested that the respondent breached any express term in the complainant’s contract of employment. It is, however, settled law that every contract of employment contains an implied term that the parties will maintain mutual trust and confidence in their working relations with each other.”

The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment.

The Complainant claims that he was discriminatorily constructively dismissed due to the manner in which he was subjected to discrimination and harassed by the Respondent on the grounds of his disability; the manner in which the Respondent carried out a flawed, inefficient and ultimately toothless investigation; the manner in which the Respondent conducted itself in a way likely to destroy the relationship of mutual trust and confidence having regard to his physical and psychological vulnerability. The Complainant contends that the Respondent’s behaviour was so unreasonable that he was left with little choice other than to resign his employment and also amounted to a repudiatory breach of the contract of employment, such that he was entitled to treat the contract as terminated and himself dismissed.

The Respondent denies the claim of discriminatory constructive dismissal and submits that contrary to the Complainant’s position, that it acted in a caring, compassionate and dutiful way to the Complainant who was highly regarded within the company. The Respondent contends that the it acted appropriately on becoming aware of the alleged incidents of harassment when raised by the Complainant and dealt with them fairly and effectively within the relatively short timeframe during which they occurred. The Respondent contends that it was in the process of conducting an investigation into these matters but was not given the opportunity to conclude the investigation prior to the Complainant resignation. The Respondent further contends that the Complainant chose to resign his employment of his own volition without invoking or exhausting the internal grievance procedures in relation to these matters.

Having regard to my findings above, I am satisfied that the Complainant was subjected to harassment in the workplace by Mr. C arising from the incident that occurred on 25 September, 2018. Furthermore, I am satisfied that the Respondent failed to deal with the Complainant’s complaints of harassment in an appropriate manner or to put appropriate measures in place during the investigation to address this treatment.

Whilst the conduct of the respondent may not, itself, have amounted to a repudiatory breach of the employment contract, I am satisfied that, having regard to the complainant’s undoubted emotional and psychological vulnerability at the material time, the conduct of the Respondent was so unreasonable as to justify the Complainant in resigning there and then.

Based on the totality of the evidence adduced, and having regard to the Complainant’s undoubted emotional and psychological vulnerability at the material time which was clearly exacerbated by his treatment at the hands of Mr. C, I find that the Respondent’s conduct by virtue of its wholly ineffective response to this matter, amounted to an undermining of the relationship of trust and confidence between the parties, was unreasonable in the circumstances and entitled the Complainant to claim that he was constructively dismissed.

I must also address the Respondent’s argument that the Complainant’s failure to fully exhaust the internal grievance procedures prior to his resignation, in terms of his decision not proceed with an appeal of the investigation outcome, is fatal to his claim of discriminatory constructive dismissal. The Labour Court also held in the case of An Employer -v- A Worker (Mr. O No. 2) that: “The Court accepts that in normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. However, there is authority for the proposition that this is not a fixed or universally applicable rule and that there can be situations in which a failure to give prior formal notice of a grievance will not be fatal (see Liz Allen v Independent Newspapers [2002] 13 ELR 84, Moy v Moog Ltd, [2002] 13 ELR 261 and Monaghan v Sherry Bros [2003] 14 ELR 293.”

In the instant case, I am satisfied that the Complainant had raised a formal grievance in relation to the harassment that had occurred arising from the incidents with Mr. C and that he brought it to the attention of the Respondent on a number of occasions that he wished to have this matter investigated. I am satisfied that any confidence or trust that the Complainant had in the effectiveness of the internal procedures was totally eroded and undermined by virtue of the ineffective manner in which the Respondent had conducted the investigation and its failure to put any measures in place to address or remedy this treatment.

In the circumstances, I find that the Complainant’s employment with the Respondent came to an end in circumstances amounting to dismissal within the meaning of section 2(1) of the Act, and that his dismissal occurred on the grounds of the harassment and failure to provide reasonable accommodation which he experienced while in the Respondent’s employment. Accordingly, I find that the Complainant was discriminatorily constructively dismissed by the Respondent contrary to Section 8 of the Acts.

Victimisation

The final element of the Complainant’s complaint which I must consider relates to the claim that he was subjected to victimisation contrary to Section 74(2) of the Acts. Section 74(2) of the Acts defines victimisation as follows:

“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,

(b)    any proceedings by the complainant

….. ….. …..

(f)     an employee having opposed by lawful means an act that is unlawful under this Act….

(g)    an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

In the case of Tom Barrett v Department of Defence[4] the Labour Court set out the three components which must be present for a claim of victimisation under Section 74(2) of the Acts to be made out. It stated that (i) the Complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) – what it terms a “protected act”, (ii) the Complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the Complainant.   In the instant case I must decide, in the first instance, whether or not the Complainant took action that could be regarded as a “protected act”. The Complainant has claimed that he was subjected to victimisation by the Respondent after he had made a complaint under the company’s internal procedures regarding the discriminatory treatment and harassment that he was being subjected to by Mr. C. I therefore find that this fact satisfies the requirement outlined in (i) above.

In considering whether the Complainant has satisfied parts (ii) and (iii) of the test outlined above, I have taken cognizance of the case of Roy Mackarel –v- Monaghan County Council[5] where the Labour Court held that: “Both the Act and the Directive provide that victimisation occurs where a detriment is imposed on a worker ‘as a reaction to’ a complaint or other protected act. The use of the expression ‘as a reaction to’ connotes that the making of a complaint, or other protected act, must be an influencing factor in the decision to impose the impugned detriment although it need not be the only or indeed the principal reason for the decision. It is, in the Court’s view, sufficient if the making of the complaint was an operative factor, in the sense of being anything other than a trivial influence, operating on the mind of the decision maker (see by analogy the dictum of Peter Gibson LJ in Wong v Igen Limited and Ors. [2005] IRLR 258 in relation to the degree of connection required between race and an impugned act or omission necessary to make out a claim of discrimination).”

In the written submissions that were made on behalf of the Complainant prior to the hearing it was claimed that the alleged act of victimisation related to the removal of responsibility for completion of the rosters from the Complainant after the incident that occurred with Mr. C on 25 September, 2018. However, at the oral hearing Counsel for the Complainant confirmed that the allegation of victimisation in relation to this matter was withdrawn. It was confirmed by the Complainant’s Counsel at the hearing that the alleged act of victimisation material to the instant complaint related to an e-mail which the Respondent’s Manager, Mr. B, had received from Mr. E, (a colleague of the Complainant and witness to the incident on 26th September, 2018) as part of the investigation into the Complainant’s complaint of harassment by Mr. C.

I have examined the contents of this email (which was sent by Mr. E to Mr. B, Manager on 26 September, 2018) and it is clear that Mr. E expresses the view that there was a “toxic atmospherein the workplace” and he appears to attribute a significant portion of the responsibility for the existence of such working conditions at the hands of the Complainant. It was not in dispute that this e-mail was not copied to the Complainant by Mr. B as part of the investigation of his complaint and I am satisfied that this is evidence of the procedural defects in the internal investigation process relating to his complaint of harassment which I have already adverted to above. However, I am satisfied that the Complainant has failed to establish that the existence of this e-mail or the manner in which the Respondent reacted towards him upon receipt of same could reasonably be construed as the taking of any action which would amount to an act of victimisation contrary to Section 74(2) of the Acts.

In the circumstances, I find that the Complainant has failed to establish facts from which victimisation within the meaning of Section 74(2) can be inferred. Accordingly, I find that the Complainant is not entitled to succeed in respect of this element of his complaint.

In accordance with section 79(6) of those Acts I issue the following decision. I find that -

        (i)            the Complainant has failed to establish a prima facie case of direct discrimination on the grounds of disability in relation to his conditions of employment.

      (ii)            the Complainant was discriminated against by the Respondent in respect of a failure to provide him with reasonable accommodation for his disability.

    (iii)            the Complainant was harassed by the Respondent contrary to Section 14A of those Acts.

    (iv)            the Complainant was discriminatorily constructively dismissed contrary to Section 8 of the Acts.

      (v)            the Complainant has failed to establish a prima facie case of victimisation contrary to Section 74(2) of the Acts.

In accordance with the provisions of Section 82 of the Acts, I consider that an award of compensation is the appropriate form of redress in the circumstances of the present case. The award is arrived at having regard to the seriousness of the discrimination, the effect on the Complainant and the requirement pursuant to Article 17 of the Framework Directive that the sanction be “effective, dissuasive and proportionate”.

Section 82(4) limits the monetary jurisdiction of an Adjudication Officer, to an amount equal to 104 times the Complainant’s gross weekly pay or €40,000, where the Complainant was in receipt of remuneration at the date of the reference of the case. I therefore order, in accordance with my powers under section 82 of the Employment Equality Acts that the Respondent pay to the Complainant the sum of €30,000 being the equivalent of approx. 9 months gross pay for the distress suffered by him and the effects of the discrimination, harassment and discriminatory constructive dismissal on him.

This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI. The award is redress for the infringement of the complainant’s statutory rights and, therefore, not subject to income tax as per Section 192A of the Taxes Consolidation Act (as amended).

In accordance with the provisions of Section 82(1)(e), I also order:

      (i)            that all staff within the Respondent company who have staff management functions receive appropriate training in its Bullying and Harassment Policy and that this training is kept under review in light of development/best practice in the area.

Employment Equality Acts 1998 to 2015 – Discrimination – Harassment – Conditions of Employment - Victimisation – Constructive Discriminatory Dismissal – Prima facie case - Complaints upheld – Compensation awarded