Complainant

Respondent

Anonymised Parties

A Former Employee

A Company

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-00021244-001

21/08/2018

The Complainant was employed as an IT trainer by the Respondent company from 2011 to 2019. The Complainant stated that she suffered from depression from in or around December, 2015 and that she informed her Manager of this in June 2016. The Complainant stated that she was on prescribed medication and that at times she found it difficult to focus. The Complainant submitted that her depression was comprehended by the definition of disability set out in the Employment Equality Act [1998-2018]. The Complainant maintained that she never had any problems with the Respondent until after the employer was made aware of her disability. It is the Complainant’s position that she was subjected to discriminatory treatment on the disability ground in relation to getting a job, in the provision of training and as regards her conditions of employment. The Complainant further asserts that she was discriminated against as a consequence of victimisation, harassment and that the Respondent failed to provide her with reasonable accommodation contrary to the Employment Equality Act [1998-2018]. 

Jurisdictional Issue in relation to Time Limit

The Complainant’s complaint was received by the WRC on the 21st August, 2018. The Complainant submitted that the discrimination was ongoing from in or around 2016 and she claimed that the various acts of discrimination to which she was subjected constituted a continuum of discrimination and that as a result, her complaint was within the statutory six-month time limit.

The Complainant provided detailed submissions in relation to a range of workplace issues which had arisen for her from 2015/2016 including a complaint of bullying which she had made on 2/7/17 and a grievance procedure which she had initiated on 22/5/18.  The Complainant explained that her bullying complaint had not been properly dealt with and that on the 10th January 2018 she signed an agreement with the Manager which recognised that procedures had not been properly followed, which resolved that matters would be discussed in a timely manner going forward and which included an apology from the Manager for any hurt caused. Notwithstanding, the Complainant stated there were further incidents related to her bullying complaint which occurred in February 2018 and on 24/7/18.

The Complainant stated that she continued to feel ignored in the workplace and therefore submitted a grievance on 22/5/18. The Complainant stated that her grievance was overtaken by a complaint about her from the Manager dated 31st March, 2018 which she only received on the 17th July 2018 when she was asked to attend a meeting by the Chairperson of the company’s board (see below). The Complainant stated that at this meeting on 17/7/18 she was asked “to deal with [her] grievance and.….[Manager’s] complaint together”. The Complainant stated that she sought to have her grievances heard first and that subsequently she received correspondence in relation to the appointment of an external investigator to investigate the Manager’s complaint but that no mention was made of her grievances.  It is the Complainant’s position that priority was given to the Manager’s complaint and that unlike any other employee, the Respondent refused to process her grievances. The Complainant submitted “There was never such an investigation launched about my grievance, and it is still being ignored. I feel like I’m under constant pressure and scrutiny, it is my view that this complaint…..undermine(s)……any good health that I have regained since being back to work”.  

The Complainant’s grievance of the 22nd May 2018 raised five issues as follows:

·         That she was “needlessly….subjected to a systematic campaign of harassment, due to [Respondent’s] omissions to take ‘reasonable and practicable steps’ and implement any ‘preventative or protective measures’ to ensure a safe working environment”;

·          That she “received unfair treatment due to nepotism and favouritism within the management”;

·         That the “agreement signed on 10th January 2018 that attempted to resolve…issues…..was broken shortly after by the Manager….”;

·         That “Confidentiality has still not improved” and that the Manager shared her personal information with a third party;

·         That the Complainant found “the manager unapproachable…” which she stated leads to continued stress for her

In relation to reasonable accommodation the Complainant gave evidence of notifying her Manager of her depression in 2016, of various emails exchanged in relation to the matter including that of the 12th December, 2016 where she requested her Manager to share the fact of her depression “in-house”. The Complainant stated she furnished her Manager “with information about effects [her] illness might have on work, eg forgetfulness, tiredness, limited multi-tasking ability, etc..”. The Complainant statedthat she attempted to return to work in July 2017 but failed due to lack of reasonable accommodation, that lengthy negotiations ensued and that after two months “concessions” were made which included being allowed to use her annual leave for a staged return to work, weekly meetings with Manager, use of email and change of seating arrangements in the workplace. The Complainant stated that she also sought “pro-active step be taken about mental health and resolving underlying issues”. The Complainant stated that the weekly meetings were inadequate and stopped after three meetings and that she felt “belittled at the meetings” and that she was not afforded any reasonable accommodation when she “was reminded of things”.

The Complainant outlined the following which she submits were part of the continuum of discrimination, and/or victimisation and/or harassment:

·         The written complaint received by the Complainant on the 17th July 2018 which the Manager had submitted to the company’s board:   The Complainant cited this complaint as an act of discrimination and victimisation as the Manager stated in her complaint that the Complainant was “using her disability to go against [Manager] at every opportunity” and that the Manager had also complained that the Complainant was “constantly complaining about the workplace….” and “irritating colleagues…..”.  The Complainant gave details of complaints she had made in 2016 and 2017 which she stated were legitimate and she stated that she was being penalised for making complaints. The Complainant strongly disputed the Manager’s complaint as being unfairly critical of her because she “forgot to add a few dates in the diary during the first week back after Christmas break” and because she “wouldn’t take holidays when the manager” wanted. The Complainant stated at the adjudication hearing that the mention of disability in the Manager’s complaint was intended to get her “into trouble” and that it was “belittling”;

·         An impromptu meeting held on the 7th March, 2018 in relation to overtime changes and company profits. The Complainant maintained that she was singled out at this meeting and that the Manager stated “it’s only you who has the problem with these rules, it’s always you, and everyone else is ok. In all these years we never had problems like these…..”. The Complainant maintained that this led to negative comments about her at the meeting. The Complainant stated that she was unfairly criticised for seeking consultation about contract changes;

·         Harassment: The Complainant stated that in respect of several incidents there was no understanding of her disability or that when she had “an episode” she found it “difficult to talk to anyone, let alone use a phone”. In this regard, the Complainant cited the following:

o   An email from the Manager to her of 23/7/2018 which advised that she only had four hours in the classroom and that she was reprimanded and accused of asking a student not to come in for the full hour when the opposite was the case;

o   An email of 22/3/18 in which the Complainant stated that she was “reprimanded… for not charging students for a class that was cancelled due to snow”;

o   An incident related to 27/3/18 concerning scheduling of classes on foot of which the Complainant stated that she “felt continually questioned so spent much time double checking things I thought I knew, this totally undermined my confidence”;

o   Annual leave - the Complainant stated that she “was pressured and reprimanded after didn’t take holidays on the day the Manager chooses…” and that in an email to her of 1/8/18, the Manager stated “I don’t have the time to debate it with you” ;

o   Pressured while out on sick leave -  the Complainant cited the date 25/7/18 and stated that she was pressured while out sick on 18/8/16, 26/10/16, 7/12/16,  6/1/17, 9/1/17, 10/1/17 and 12/1/17;

o   Repeatedly pressured for work which was unattainable – the Complainant cited two emails and verbal conversations of 18/8/17 and 29/8/17 which concerned specific lesson content in circumstances where the Complainant stated that she hadn’t yet completed the necessary course for this purpose.

·         The Complainant stated that when she returned to work in November 2017 she asked about teaching the ECDL, that she was told that who gets the job depended on who was available with the skills on the day and that a new employee was given the job. The Complainant stated that she was the most qualified ECDL trainer and second longest serving employee and yet the “..timetable update received on 15/8/18 does not have me rostered on to teach ECDL….”. The Complainant maintained that this was a further example of unfair treatment and discrimination;

·         Provision of Training - the Complainant stated that she requested training upon her return to work and that this was refused on the basis of lack of funds. The Complainant disputed this reason and stated that when she offered to pay for the training herself she received “vague answers”. The Complainant furnished various email exchanges with the Respondent of February and March 2018, in relation to the matter of seeking training;

·         Conditions of Employment - the Complainant stated that on  21/2/18 overtime was dropped “without consultation” but that she was still required to work after hours with no concessions. The Complainant also stated that she was repeatedly told that she was “required to take…annual leave when it suits the manager without discussion”, that her grievances were not dealt with and that she was not provided with reasonable accommodation. The Complainant also complained about inadequate communications in the workplace.

The Complainant stated that she was covered by a relevant discriminatory ground – ie disability, that her employer was aware of this and that notwithstanding, she was subjected to less favourable treatment than another not covered by the disability ground. The Complainant stated that she was allowed within the Employment Equality Act [1998-2018] to rely on a hypothetical comparator. The Complainant stated that there was a positive obligation on the employer to establish the nature and extent of the Complainant’s disability and her capacity to carry out all work duties.The Complainant stated that she had proven a prima facie case of discrimination and that the burden of proof should be shifted to the Respondent pursuant to Section 85A of the Employment Equality Act [1998-2018].

The Complainant cited the case of A Prison Officer v The Minister for Justice, Equality and Law Reform [DEC-E2007-025] in relation to the onus on employers to consider an employee’s disability and the measures needed to accommodate this.

The Respondent stated that the Complainant’s complaint of discrimination was outside the six months time limitation period and therefore statute barred. The Respondent stated that the details of the complaint spanned from 2011 to 2018, that the complaint was received by the WRC on the 21st August 2018 and that “there were no acts or omissions of victimisation or discrimination with the time limit (the period from 22nd February 2018 to 21st August 2018) which would allow account to be taken of any such acts or omissions outside of the time limit (any such acts or omissions being denied)”. In this regard the Respondent cited the case of County Cork VEC v Ann Hurley [EDA1124] that “an act would be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintained and kept in force a discriminatory regime, role practice or principle which had a clear and adverse impact on the complainant” – which was denied by the Respondent. The Respondent submitted that the acts or omissions complained of were not sufficiently connected to constitute a continuum. The Respondent also cited the case of County Louth VEC v Equality Tribunal [2016] IESC40 as proposition for the position that “in order for any such acts or omissions outside the time limit to be taken into account, there must have been acts or omissions of victimisation or discrimination within the time limit”.  In this regard, the Respondent stated that the Manager’s complaint of the 31st March, 2018 was not a discriminatory act and that the issues raised therein related to performance at work.

The Respondent further stated that the Complainant had not applied for an extension of the six months time period.

In relation to the  substantial complaints of discrimination in getting a job, in relation to the provision of training, victimisation, conditions of employment, harassment and failure to provide reasonable accommodation, the Respondent stated that “none of the issues which arose are attributable to the Complainant’s disability” or constituted less favourable treatment. The Respondent stated that the Complainant had not substantiated her complaints of discrimination on the grounds of disability and that there was nothing contained in her list of incidents which established unfair or discriminatory treatment. In this regard, the Respondent stated that it accepted there were “significant issues between the Complainant and her work colleague and Line Manager…” but that these “stemmed from….performance at work, conduct and competency” matters and had nothing to do with the Complainant’s disability.  The Respondent stated that “very significant steps were taken by the Respondent to accommodate the Complainant’s disability”.

The Respondent stated that “In order to establish direct discrimination, it is necessary to prove that, but for the fact that the Complainant falls within one of the discriminatory grounds, she would have been treated differently”. In that regard, the Respondent stated that the Complainant had failed to identify any relevant or appropriate comparator for the purpose of her complaint notwithstanding that there were four other members of staff.

The Respondent submitted that the Complainant had not discharged the burden of proof and had failed to demonstrate that she was treated less favourably than the other four members of staff. The Respondent cited a range of cases in relation to the burden of proof in employment equality cases and relying on the case of A Technology Company v A Worker [EDA0714], the Respondent stated that “The connection between the discriminatory ground….and the alleged discriminatory acts is not to be satisfied by way of motive or intention, but rather from objective facts that infer discrimination”.

The Respondent also cited a range of cases in relation to the matter of reasonable accommodation. The Respondent denied that the Complainant was not afforded reasonable accommodation for her disability. The Respondent stated that “it took various steps to accommodate the Complainant and was always cognisant of her disability. The Respondent however is a small organisation of charitable status and has very limited resources. The Respondent engaged with the Complainant on an ongoing basis regarding her illness and always allowed her as much leeway as it could reasonably afford given its limited resources”.  

The Respondent also denied that the Complainant was bullied or harassed or treated unfairly in the course of her employment.

The Respondent provided a booklet of documentation which included the various company policies and procedures and the report of the external investigator.

This is a complaint of discrimination on the disability ground. The Employment Equality Act [1998-2018] defines disability as follows:

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

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

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

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

(e) a condition, illness or disease which affects a person’s thought processes, perception ofreality, 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 Complainant’s evidence is that she suffered from depression, that she was on medication and that she had informed her Manager of this in 2016. There was no medical evidence or medical certification produced at the adjudication hearing to support the contention that the Complainant had been suffering from a disability at a time material to her complaint. Nor was any medical evidence adduced at the adjudication hearing to support the Complainant’s position that she had been suffering from depression or a disability. However, I note the Respondent has not disputed the Complainant’s claim in this regard and has stated that it took steps to accommodate the Complainant’s disability.  Accordingly, on the basis of the evidence and submissions presented, I am satisfied the Complainant was suffering from a disability within the definition comprehended by the Employment Equality Act [1998-2018] and that the Respondent was aware of this.

Jurisdictional Issue in relation to Time Limit

The time limits which govern the referral of complaints are set out in Section 77of the Employment Equality Act [1998-2018]. In this regard, Section 77(5)(a) of the Act provides: -

“(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

Section 77(6A)(a) of the Employment Equality Act [1998-2018] provides that: -

“For the purposes of this section —

(a) discrimination or victimisation occurs—

o   (i) if the act constituting it extends over a period, at the end of the period

o   (ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

o   (iii) if it arises by virtue of a provision which operates over a period, throughout the period”.

The foregoing therefore provides that acts of discrimination which occurred outside the normal time limit can still be relied upon provided the complaint to the WRC is submitted within the six months of the point in which the discrimination ended. This matter was considered in County Cork VEC –v- Ann Hurley [EDA1124] where the Labour Court stated that:

·         “Subsection (5) and subsection (6A) of S.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant …… where, for example, an employer maintains a discriminatory requirement for access to employment or promotion”

·         “Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum …… in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions ofvictimisation (ordiscrimination) within the time limit…… their admissibility is dependent upon some link being established between the occurrences outside of the time limit, and those inside the limitation period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely. ”

The Complainant submitted her complaint of discrimination on the disability ground to the WRC on the 21st August 2018. The six month reckonable period therefore runs from the 22nd February, 2018 until the 21st August. The Complainant did not seek an extension of the six month time limit as provided for at Section 77(5)(b) of the Employment Equality Act [1998-2018]. Applying the legal principles identified above, it appears to me that the admissibility of the complaint in so far as it relates to alleged acts of discrimination in the period before the 22nd February 2017, depends on the validity of the complaint of discrimination within the six-month period after that date. In addition, admissibility is dependent upon some link being established between the occurrences outside the time limit and those within the reckonable period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely. In light of the foregoing, I must first consider the incidents of alleged discrimination relied upon by the Complainant within the six month time limit and decide if a prima facie case is made out in respect of each of these.

Section 6(1) of the Employment Equality Act [1998-2018] 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)…..” which include at Section 6(2)(g) the disability ground.  For this purpose I am satisfied that a hypothetical comparator is sufficient and I am guided by the Labour Court decision in Citibank v Massinde Ntoko [EED045],  which concerned discrimination on the race ground. In that regard, the Labour Court stated that:

“The Complainant must, therefore make out his case of discrimination by reference to the treatment of a comparator of a different racial origin in circumstances similar to his own…..There is no actual comparator in this case but the complainant can rely on a hypothetical…worker…..of a different racial origin” in the context of how such a person “would be treated”.

Victimisation is defined at Section 74(2) of the Employment Equality Act [1998-2018] as occurring where there is “dismissal or other adverse treatment of an employee by his or her employer as a reaction to-

a)      A complaint of discrimination made by the employee to the employer,

b)      Any proceedings by a complainant,

c)       An employee having represented or otherwise supported a complainant,

d)      The work of an employee having been compared with that of another employee….,

e)       An employee having been a witness in any proceedings under this Act….,

f)        An employee having opposed by lawful means an act which is unlawful….,

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

Harassment is defined at Section 14A of the Employment Equality Act [1998-2018]. In this regard, Section 14(1) provides that “…..where…..an employee…..is harassed or sexually harassed either at the place of work……or otherwise in the course of his or her employment……the harassment or sexual harassment constitutes discrimination by the….employer in relation to the victim’s conditions of employment”.   Section 14(7) goes on to state that:

a)      “In this section –

                                                               i.      references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds,….”

Section 85A of the Employment Equality Act [1998-2018] 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 her. If the Complainant 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 thereby shifting the burden of proof to the Respondent. In Melbury v. Valpeters EDA0917, the Labour Court stated that what:

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

In relation to the incidents of alleged discrimination which occurred in the six month period prior to the 21st August, 2018, I having concluded as follows:

1.       The Manager’s written complaint of the 31st March, 2018, which the Complainant received on the 17th July 2018, comprised a four page typed letter which raised several issues including at page 2 that the Complainant “is using her disability to go against me at every opportunity”. I am of the view that a complaint by its nature is a statement of allegations on the part of one party which is open to response and/or rebuttal by the other. In this instance the Manager’s complaint was sent to the board of the company and subsequently was the subject of an investigation conducted by an external investigator. In considering this letter of complaint, I am satisfied that no evidence has been adduced to suggest that it was maliciously motivated or made in bad faith.  In the circumstances, I accept that the Manager was entitled to communicate with the board of the company about workplace matters.   Based on all the evidence and submissions, I am not satisfied that the fact of this complaint having been made or that the content of this letter constituted discrimination or unfair treatment on the disability ground. Nor do I find that this letter constituted victimisation based on the very clear criteria set out at Section 74(2)(a)-(g) of the Act as in my view, the Complainant has not adduced evidence to bring her complaint about this letter within the statutory definition of victimisation.

2.       In relation to the impromptu meeting on the 7th March 2018, the issues raised at this meeting according to the Complainant related to overtime, company profits and contractual matters. In my view, the Complainant has not adduced sufficient evidence that there was any connection between this meeting and her disability or that a comparator who raised the same issues would not be similarly treated; 

3.       In relation to the Complainant’s complaints of harassment, I have carefully considered all of evidence adduced at the adjudication hearing and the submissions. In addition, I have carefully considered all of the emails furnished to me and specifically those sent within the six month period 22/2/2018 – 21/8/2018 – including:

a.       the emails of 22/2/2018 concerning contract and funding;

b.       emails of 19/2/2018 and 22/3/2018 concerning the passing on of a complaint. In this regard, I note that the Complainant wrote a letter on 14/2/2018 concerning contract matters in which she stated that she found herself “totally stressed out with the constant distortion of facts….This communication sometimes happens after days of depression and procrastination….It should not be this difficult to be provided with an adequate contract and employee handbook….”.  The evidence at the adjudication hearing was that the Complainant was granted a contract of indefinite duration;

c.       emails of March 2018 in relation to payments for class activities, planning and a snow day when the Complainant stated that was “reprimanded for not charging students for a class that was cancelled due to snow”;

d.       emails of 27/6/2018, 17/7/2018 and 25/7/2018 concerning annual leave for the trainers and the Complainant’s request to take holidays as she needs them. In this regard, I note that the Complainant stated in an email (which I cannot find date of) that she did not want to take days off when she had nothing planned and also stated that telling her when to take days off was “contrary to the Working Time Act 1997”.  I also note the email from the Manager to Complainant of 1/8/2018 which advised “As you insist on coming in next week, that will not be necessary as I don’t have the time to get into a debate with you on it….”;

e.       Emails of 20/2/2018, 1/3/2018, 27/3/2018, 11/4/2018 and 12/4/2018 concerning the Complainant’s requests for additional IT training, in relation to the payment of such training, the Respondent’s replies regarding the provision of  training and the costs and class allocation.  I also considered the Complainant’s assertion that although she was the most qualified ECDL trainer and second longest serving employee she was excluded from the roster on 15/8/18.

Based on the totality of the evidence related to the six month period 22/2/2018 – 21/8/2018 and having regard to the definition of harassment set out at Section 14A of the Employment Equality Act [1998-2018], I am not satisfied that significant facts have been established from which it may be presumed that discrimination, unfair treatment or harassment has occurred in respect of the Complainant’s annual leave, her contract, snow days or the provision of training. In my opinion, the Complainant has not adduced evidence to suggest that she was harassed because of her disability in respect of these issues or that another employee without a disability would have been treated differently.

4.       The Complainant cited the date of 25/7/18 and stated that she was pressured while out sick but the examples she provided referred to other dates which preceded the six month period. Apart from asserting that she was pressured while on sick leave on  25/7/2018 the Complainant did not provide any further details as to what occurred on this date. Therefore, I find the Complainant has not adduced sufficient evidence to persuade me that she was harassed on that day;  

5.       The Complainant raised discrimination in relation to her conditions of employment  including that on  21/2/18 overtime was dropped “without consultation”,that she was “required to take…annual leave when it suits the manager without discussion”, that her grievances were not dealt and that she was not provided with reasonable accommodation. The Complainant also complained about inadequate communications in the workplace. In relation to these matters and having carefully considered all the evidence and submissions, I find as follows:

a.       In relation to the matters of overtime, communication and annual leave, I am not satisfied that the Complainant has adduced evidence to persuade me that the handling of these matters by the Respondent impacted on her differently because of her disability or that she was discriminated against in relation to these matters or treated differently. Apart from making this assertion, I find the Complainant has not adduced sufficient evidence to persuade me that the matters of overtime, communication or annual leave were acts of discrimination, victimisation or harassment;

b.       In relation to the Complainant’s grievance which she initiated on the 22nd May, 2018, I note from the Complainant’s evidence that she was asked to deal with the grievance and the Manager’s complaint together. Given the relative proximity of time between the Manager’s complaint and the Complainant’s grievance I do not consider this request unreasonable or unusual – and particularly in circumstances where the Respondent had appointed an external investigator. Accordingly, I do not consider that the Respondent refused to deal with the grievance initiated by the Complainant on the 22nd May 2018 or that the Respondent dealt with this matter differently because of the Complainant’s disability. I find that the Complainant has not adduced sufficient evidence to persuade me that the handling of this grievance was an act of discrimination, victimisation or harassment;

c.       In relation to the provision of reasonable accommodation to the Complainant, Section 16(3) of the Employment Equality Act [1998-2018] 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 Act but also that appropriate measures are necessary in order for that employee to be fully competent and capable of undertaking his/her duties. This matter was considered by the Supreme Court in the case of Nano Nagle School -v- Daly [2019] IESC 63 and in his judgement MacMenamin J. held at paragraph 84 that: “… s.16(3)(b) explicitly identifies the mandatory primary duty of an employer. He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself”. The Complainant’s evidence is that in order to enable her return to work in 2017 there were “Lengthy negotiations” followed by an agreement between her and the Respondent on various “concessions” in relation to the use of her annual leave to allow a staged return, seating in the workplace, weekly meetings, use of email and that she also sought that pro-active steps would be taken. Whilst the Complainant stated that the meetings were inadequate and did not continue, I am not persuaded that she has adduced sufficient evidence to show that she sought to vary the 2017 agreement at any time within the six month period 22/2/2018 to 21/8/2018 or that she sought further accommodations within this period and that they were refused. In this regard, I note that none of the five issues raised in the Complainant’s grievance procedure of the 22nd May, 2018 (already set out) mention reasonable accommodation. Similarly, the Complainant’s letter of the 14th February 2018, related to seeking clarification on contractual matters but did not raise the matter of reasonable accommodation. In all the circumstances therefore, I do not find that the Complainant was discriminated against in relation to the provision of reasonable accommodation with the six month period prior to the submission of her complaint to the WRC on the 21st August, 2018.

In conclusion, having considered all the evidence and submissions, I am satisfied that the Complainant has failed to adduce any significant evidence to support her claims that the alleged treatment of her within the cognisable period - the 22nd February, 2018 – 21st August, 2018 - was discriminatory on the ground of disability or that she was victimised, harassed or refused reasonable accommodation within that period.  As I have found that the events occurring within the cognisable period do not reach the prima facie threshold to constitute individual acts of discrimination, victimisation or harassment, I do not have jurisdiction to consider the complaints made by the Complainant relating to events outside the six month limitation period.

For completeness, as  the Complainant has not provided enough evidence to establish a prima facie case to uphold the allegations selected in her complaint form, the following is my decision on each of those complaints :

The Respondent discriminated against the Complainant by reason of her Disability – no prima facie case has been established.

The Respondent treated the Complainant unlawfully by discriminating against her in getting a job  – no prima facie case has been established.

The Respondent treated the Complainant unlawfully by discriminating against her in giving her training  – no prima facie case has been established.

The Respondent treated the Complainant unlawfully by discriminating against her in victimising her – no prima facie case established.

The Respondent treated the Complainant unlawfully by discriminating against her in failing to provide reasonable accommodation   – no prima facie case has been established.

The Respondent treated the Complainant unlawfully by discriminating against her in conditions of employment – no prima facie case has been established.

The Respondent treated the Complainant unlawfully by discriminating against her in harassing her – no prima facie case has been established.

CA-00021244-001

For all the reasons outlined, I decide that this complaint is not well founded.