Complainant

Respondent

Anonymised Parties

Receptionist / Office Administrator

Manufacturing company

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030362-001

19/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030362-002

19/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00030362-003

19/08/2019

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

CA-00030362-004

19/08/2019

The Complainant was employed by the Respondent as a Receptionist/Office Administrator from 15th May 2018 until 28th March 2019 when her employment was terminated by the Respondent. The Complainant was paid a monthly salary of €1,916.67 gross.

The following complaint was withdrawn at the hearing: CA-00030362-002.

The Complainant submits that she did not receive a statement in writing of her terms and conditions as required under section 3 of the Terms and Conditions of Employment (Information) Act, 1994.

It is not contested by the Respondent that the Complainant was not issued with her terms and conditions of employment in line with the requirements of the Terms of Employment (Information) Act. The Respondent submits that this was an oversight on its part.

Section 3(1) of the Terms of Employment (Information)Act, 1994 stipulates that “An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment…”

The Respondent accepts that the Complainant was not provided with a written statement of Terms and Conditions of Employment pursuant Section 3 of the Act. I find, therefore, that the Respondent has breached Section 3 of the Act and that this complaint is well founded.

I find that this complaint is well founded. I direct the Respondent to pay the Complainant compensation of €1,900 gross in respect of the contravention being the equivalent of approximately four weeks’ pay, the maximum permitted under the Act, which I consider to be fair and reasonable in all the circumstances of the complaint.

The following is a summary of the Complainant’s submission:

The Complainant maintains, as per her complaint form, that she did not always get her break entitlements and often worked at her desk through her break period.

Complainant’s response to the Respondent’s submission

The Complainant has not suggested she was not aware of break times but does submit that she was never informed of her legal break entitlements. She submits that she did not always get her break as she often worked through in order to keep on top of her work. The Complainant accepts that she did not raise the issue with the Respondent. She contends, however, that it is the responsibility of the employer to ensure that all employees receive their legal break and rest entitlements. The Complainant requests that the Respondent provide records pertaining to her in this regard.

The Complainant does not contend that she was told she could not take a break. The Complainant submits that her disability often slowed her work and so she felt pressure to work through her breaks to check details and minimise mistakes. The Complainant submits that members of management would sometimes speak to her in a rude and aggressive manner regarding errors in her work, and so felt pressure to work through her lunch.

Direct evidence of the Complainant

The Complainant submits that, because of her disability, she needed extra time to attend to some of her duties. She, therefore, worked through lunchtime two or three times a week in order to try to minimise mistakes with the result that she did not always get breaks.

The Complainant submits that there was no facility to clock in or out at break times. The Complainant contends that the Respondent should have records to show that she did get all the breaks to which she was entitled.

The following is a summary of the Respondent’s submission:

The Complainant has alleged that she “did not always get her break and often worked through her break period at her desk”. However, this is entirely refuted by the Respondent.

It is the practice within the business that all staff take their breaks at the same time each day. All employees within the organisation take standard breaks at 10.15am for fifteen minutes and lunch from 1.30pm to 2.00pm. All employees finish work at 5pm.   The Complainant was informed of this at the time of starting. While it is accepted the Complainant may, on occasion, not have taken her break at the exact time as originally referred, at no time did the Complainant ever raise the matter of not getting her allocated breaks with the Respondent.

The Respondent submits that, in a situation where the employer has standardised the break times to such an extent, and all staff are aware of what the break times are, the Respondent has fulfilled its obligations to provide the required break time as per the Act.

The Complainant’s workplace relations complaint form specifically states that “I did not always get my break entitlement and often worked through my break at my desk”. It is the submission of the Respondent that clearly indicates that the Complainant was aware of the breaks within the organisation, and does not indicate in any manner that the Complainant is alleging that at any time was she told she could not take a break.

Furthermore, the Respondent entirely refutes that any situation arose where the Complainant would not have been able to get a break, and specifically denies that any such an occasion would happen often as described by the Complainant. While it is acknowledged that employees, on rare occasions, may not get their break at the correct time, it was an understood practice that breaks would be delayed, or postponed if something urgent was required. However, these events would be very much the exception rather than the norm.

In addition, it is denied that the Complainant was ever placed in a position where she was unable to take a break from her work. At no time was the Complainant ever asked to work through her breaks and, considering the nature of the workforce, it is unlikely the Complainant felt that working through her break is something that was required.

Direct evidence of the Manager A

Manager A submits that the breaks are standardised across the organisation – a bell goes at 10.15 for the break and 1.30pm for lunch and the entire organisation stops working. The Respondent would not expect any member of staff not to take a break.

Manager A submits that if an employee does not get breaks at the standard time, there is no problem taking them later.

Manager A submits that the Respondent did not keep records of breaks as the bell goes at the start and finish of all breaks. The Respondent company has been in existence for 35 years. All staff are afforded a certain amount of autonomy and their break times are not monitored.

Manager A submits that never once was it suggested to the Complainant that she should have worked through her breaks to improve her performance.

The Complainant’s representative asked Manager A if he ever witnessed the Complainant working through lunch. Manager A responded that the Complainant was often in the office but that she never raised the issue of not getting breaks during the course of her employment.

The Law

Section 12 of the Organisation of Working Time Act places a statutory obligation on employers to ensure that an employee is granted breaks as follows:

(1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

The issue at the heart of this referral is whether the Complainant received the breaks to which she was entitled under Section 12 of the Act. The Complainant alleges that she did not always receive such breaks.

To demonstrate that employees did get their breaks, Section 25(1) of the Act requires employers to keep records to show compliance with Section 12 as follows:

“An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.”

Section 25 of the Act places an obligation on employers to maintain records showing that the provisions of the Act have been complied with. The records must show compliance with all aspect of the Act, including hours worked, breaks taken, holidays provided and notifications given of variable starting and finishing times.

If a dispute arises concerning compliance with any requirement under the Act, the absence of records will result in the onus of proving that the Act was not contravened resting on the employer. Without proper records it may be extremely difficult for an employer to discharge that burden. However, the failure to maintain records cannot give rise to an award of redress by an Adjudication Officer. Redress can only be awarded for the failure of the employer to ensure that the employee obtained the requisite breaks, and not for the failure to maintain records.

In Antanas v Nolan Transport DWT1117, the Labour Court posed the question as to whether the Working Time Directive imposes an obligation on an employer to provide workers with the opportunity to take breaks or a positive obligation on an employer to ensure that the breaks are actually taken. The Labour Court noted that this question was considered in Case C-484/08, Commission v United Kingdom, [2006] IRLR 888 where the ECJ determined that workers must actually benefit from the daily and weekly rest periods in arts 3 and 5 of the Working Time Directive and that employers are obliged to ensure that their workers so benefit. The Labour Court concluded that an employer must, therefore, take the practical steps to ensure that its obligations under the Act are observed.

The obligation imposed on an employer by the Act stops short of actually forcing the employee to take the required rest periods or breaks. It has been held that the obligation which the Act imposes is to create an atmosphere within the employment in which the minimum rest periods are effectively observed. In practice, that requires employers to make it clear to employees that they are obliged to take breaks and rest periods, and to monitor the observance of that obligation.

In my view, the sounding of a signal to indicate a break time is not sufficient to ensure compliance with that obligation.

From the evidence adduced by the Respondent, it is clear that the Respondent was not proactive in ensuring that the Complainant took all the breaks to which she was entitled. I am of the view that the Respondent should have been aware that the Complainant was not availing of breaks and should have taken steps to address this matter.   Even if it was not possible for the Complainant to take breaks at the standard time, the Respondent should have ensured that she took her breaks at another time during the working day.

In light of the foregoing, I find that this complaint is well founded.

I find that this complaint is well founded and I direct the Respondent to pay the Complainant compensation of €500.

The following is a summary of the Complainant’s submission:

The Complainant submits that her dismissal was as a consequence of performance issues related to her disability and submits also that, during the termination meeting, the Manager made direct reference to her hearing and memory impairments.

Complainant’s response to the Respondent’s submission

It is not the Complainant position that the main topic of discussion at the interview was her health condition, rather it is her contention that it was discussed in the course of the interview.

In addition to her complaint that she was not issued with a copy of her Terms and Conditions, the Complainant further submits that no offer letter was issued to her and that no such letter has been submitted by the Respondent in evidence. The Complainant asserts that the only written reference to a trial period was in the termination letter issued by the Respondent to the Complainant on 28th March 2019. It is the Complainant’s position that the Respondent has provided no evidence to support its statement that it sees the trial/probationary period as an important period of ‘evaluation and training’.

In its submission, the Respondent asserts that ten months of training was provided for the Complainant but did not provide any documentation to support this contention. It is the Complainant’s position that, that while she did receive some ad-hoc and on the job coaching, there was no formal training programme in place.

In its submission, the Respondent asserts that the Complainant’s poor performance had been addressed on numerous occasions. The Complainant submits that, during the course of her employment with the Respondent, her performance was never addressed in a formal, structured way.

The Complainant accepts that there were issues with her performance as a consequence of her disability and submits that her disability caused her difficulty hearing and recalling instructions and information correctly.

The Complainant submits that the Respondent admits that it made the decision that the Complainant was ‘not suited’ to the role and that she was dismissed as a consequence of this.

It is the Complainant’s position that while the Respondent was aware of her disability, it made no effort to examine the reasons underlying the Complainant’s performance and it chose instead to dismiss her, because it thought that it could do so with impunity.

The Complainant contends that under Employment Equality legislation, it is incumbent on an employer to take steps to accommodate an employee’s disability before taking the decision to dismiss. It is the Complainant’s position that the decision to dismiss her was reached without any consultation with the Complainant; without any effort to understand the challenges faced by her; and, without any attempt to identify actions or measures which would support her.

The Respondent submits that ‘it should be noted...... that at no time was the matter of disability ever discussed......’ and that the first time the term was used was after the Complainant’s dismissal.

The Complainant submits that just because she did not describe her condition as a ‘disability’ it does not mean she does not suffer a disability, as defined under the relevant legislation. In any case, it is the Complainant’s position that the Respondent, in its submission, makes it clear that it was very aware that a disability was present.

It is the Complainant’s position that how, when and where the Respondent became aware of the Complainant’s disability is not of particular relevance. The Complainant asserts that the fact remains that the Respondent was aware of the Complainant’s disability during the her employment and at the point of termination, yet it took no action to examine measures to support the Complainant in her role.

The Respondent states that the Complainant was ‘satisfactory’ in her position. To the Complainant. this would suggest that, with reasonable support and accommodation, the Complainant could have overcome the challenges presented by her disability.

It is the Complainant’s position that while the Respondent was aware of the disability, it made no effort to examine the reasons underlying the Complainant’s performance and it chose instead to dismiss her, because it thought that it could do so with impunity.

The Complainant would assert that even if the length of her employment with the Respondent removes her from the protections of the Unfair Dismissals Act, this does negate the Complainant’s right to natural justice, which, she contends, the Respondent has chosen to totally disregard.

The Complainant submits that the termination letter dated 28th March 2019 issued by Manager A makes no mention of why the dismissal occurred.   In a second letter dated 29th March 2019 issued by the Office Manager, the Respondent stated that it had no work for the Complainant. A third letter, signed by the Managing Director, describes the Respondent company as ‘highly seasonal’ and experiencing some quiet periods and so it was decided to run the office with one less person. The Complainant was recruited to a full-time, permanent post, in the same supposed quiet period in 2018.

The Complainant submits that in the termination meeting, Manager A cited the quiet period as a reason, along with her impaired hearing and memory, as reasons for the dismissal. However, it is contradicted by the subsequent advertising of the post and a text to the Complainant, from a former colleague, informing her that her former position was open.

Direct Evidence of the Complainant

The Complainant submits that when she was interviewed for her position, she was asked why she had not been working for a length of time. She informed the Respondent that she had been diagnosed with a brain tumour but she did not say that she had a disability. She explained at the interview that she had memory and hearing loss.

The Complainant submits that the training she received was ad-hoc and that she was no provided with any manuals nor was any formal record maintained of the training that was provided to her.

The Complainant submits her hearing impairment caused her difficulty with phone calls and that sometimes she did not hear what was being said on the phone. The Complainant felt that her performance issues were due to her disability.

The Complainant submits that the Respondent made no effort to understand or accommodate her disability.

The Complainant submits that although she did not explain her hearing or memory disability at any stage during her employment, she would have told the Office Manager very early on that she could not hear in her left ear. She accepts that she never had an in-depth conversation with the Office Manager about her hearing impairment and that she did not explain her issues around variable hearing between her ears.

The Complainant submits that reference was made to her disability during the course of her termination interview with the Respondent. The Complainant would feel that if her disability was not relevant then should not have been mentioned. The Complainant contends that the fact that her hearing was mentioned in her termination interview suggested to her that she was dismissed due to her disability.

The following is a summary of the Respondent’s submission:

It is the Respondent’s position that the Complainant’s employment was terminated on grounds unrelated to her disability, and as such the provisions of the Employment Equality Acts do not apply in the herein case.

The Complainant began her employment with the Respondent company as a receptionist in or around 15th May 2018. Her primary duties involved answering the phone, filing, typing, entering orders into the in-house tracking system, dealing with website orders including occasionally the picking, packing and shipping of those orders.

At the time of interview the Respondent was aware that the Complainant had not worked in over 8 years. A discussion was had regarding the reasons for the absence from work and such a conversation did reference a previous illness.

The main area of discussion at the time of interview did not revolve around the Complainant’s previous illness, but what was of a main concern to the Respondent was the Complainant’s lack of experience in relation to receptionist duties, or any office work in general. The Complainant, however, did represent herself at the interview as someone who was willing to learn and work hard to make up for the shortcomings in her experience.

It was agreed between the Complainant and the Respondent that a trial period would commence, to see if the Complainant was suitable for the position. At the time that she was offered the position, it was made very clear to the Complainant that the position was being offered on a trial basis.

Whilst the Complainant was satisfactory at her position, there were a number of issues, however, in relation to her work prior to her termination. Specifically, the Complainant’s attention to detail in relation to her data entry work was of a major concern. Throughout the Complainant’s ten months of employment several complaints were made to Manager A that the accuracy of data was not up to standard. Regularly the Complainant was not accurate in entering the orders; there were situations where the codes in the computer would not match the job card, and vice versa. Incorrect prices would be applied to customer orders and on numerous occasions order pickers informed Manager A of errors on job cards, such as wrong code or errors in relation to the quantity entered.

These errors were not corrected by the Complainant over time and her accuracy in this regard did not improve. Accuracy is an essential part of the Complainant’s role as the Respondent has a range of over 50 product codes. As such, attention to detail, accurate recording of information and accurate data entry are vitally important. If there are errors in recording and entering orders the wrong product will be picked, incorrect quantity will be picked, product omitted from an order, invoices will have incorrect prices. These errors are then compounded as orders and invoices, would have be corrected which in and of itself takes additional time and resources, and upset or displeased customers would need to be dealt with.

Ultimately the decision was made that, due to the number and frequency of the errors, and the Complainant’s lack of progress in the 10 months of her employment with the Respondent, she was not suited to the role and the employment would have to be terminated. The Complainant was informed of this decision on 28th March 2019.

It is the Respondent’s position that the dismissal of the Complainant was entirely for the reason that her capability to complete the duties of the position was inadequate, not due to her disability. In addition, it should be noted that at no time during her employment was the matter of a disability ever discussed specifically with the Respondent. The disability was not directly mentioned at interview, or at any time during the Complainant’s employment. In fact, the first-time the term disability was ever mentioned to the Respondent was following the Complainant’s dismissal.

The fact of the matter is that the Complainant did divulge details of her injury during the course of her employment, but at no time directly referred to it as a disability, until after her employment was terminated. During the course of the employment the Respondent was aware, of the hearing and memory loss but the information was not given in any direct conversation. It has been described by Manager A that over the course of time the Respondent became aware of the Complainant’s difficulty, but there was no specific moment.

It is the Respondent’s position that the dismissal of the Complainant was entirely due to the performance of the Complainant. The quality of the Complainant’s work was not up to the required standard, and following ten months of training a decision had to be made as to whether or not to continue the Complainant’s employment beyond the trial period agreed with the Complainant at the time of her commencement.

It is the Respondent’s position that a trial period is a period of evaluation and training and while this is an import stage in the employment process, the Respondent is aware that an employer’s actual protection in a probationary period comes more from the fact that the employee has not got sufficient service to enable him/her to take a case under the Unfair Dismissals Acts. It was for that reason alone that the decision was made to terminate the Complainant’s employment when it was made.

During the ten months the Complainant worked for the Respondent, the Complainant had on numerous occasions been spoken to about the quality of her work, in particular the inaccuracy in the data entry aspect of her role. The repeated inaccuracy of orders was having a detrimental effect on the efficient running of the business, and on customer satisfaction.

The Respondent wishes to make clear that at all time it was aware of and cognisant of the Complainant’s disability. During the course of the Complainant’s employment it had been made aware to them and a brief discussion about the absence from work did reference the memory loss and a diminution in her hearing. However, it was not an issue at the time of commencement and was not an issue at the time of dismissal.

Further it is the position of the Respondent that the termination of the Complainant’s employment was not on the grounds of disability, but rather based on competence. There is no prohibition in the Employment Equality Act that prevents an employer terminating an employee for grounds that are unconnected with one of the nine grounds of equality.

The Complainant was offered an opportunity on a trial basis, based on the understanding that if it did not work out, both parties would be able to part ways amicably. The Complainant was not dismissed on the grounds of disability. The decision to dismiss the Complainant was solely based on the fact that her skills required for the position were not at a high enough standard; in particular her data entry skills were not up to the required standard. The effect of this short falling was that the orders were entered into the system incorrectly, this was the primary reason behind the decision to terminate the Complainant’s employment.

Direct evidence of the Manager A

Manager A contended that at no time during the course of her employment did the Complainant mention the fact that she had a disability. Manager A submitted that his main concern at the job interview was the Complainant’s lack of experience. Manager A was reassured on this score when the Complainant expressed herself willing to learn. Manager A submitted that he did not ask about the Complainant’s previous illness at her job interview. He was pleased that she was available straight away to take up employment in the Respondent company. Manager A submitted that both parties agreed that the position might not work out and that the Complainant have to undergo a trial period.

Manager A submitted that, over a period of time, he became aware of the Complainant’s hearing difficulty and that, throughout the course of her employment, he became aware that there were issues but that the Complainant never informed him that she had a disability. Manager A submitted that the Complainant’s disability was an issue but was not the issue that led to her dismissal.

Manager A submits that the Complainant had a problem with accuracy. He explained that orders are received via email, over the phone or from the salesmen. The order has to be transferred to a job card. The Complainant was required to manually copy information to a job card. Some information was required to be entered on the electronic system. The data entry portion of her job did not require the Complainant to have a good memory.

Manager A submitted that the Complainant had difficulty with data entry which is not reliant on memory but rather on attention to detail. He felt that the Complainant did not have good attention to detail.   He felt that the accuracy of data entry was not a matter that required reasonable accommodation.

Manager A submitted that he did not know if the Complainant had difficulty hearing orders that were received by telephone. He contended that the Complainant made errors in other orders – not just in phone orders and that the Respondent could not work around the issues with her accuracy.

Manager A contended that speaking to people on the phone and speaking to colleagues all caused difficulty for the Complainant.

In response to question from the Adjudication Officer concerning how it communicated with the Complainant regarding issues with the quality of her work, Manager A said that he had never sat down formally with her to discuss the matter. He said that she would have been getting feedback from her Supervisor.

Manager A submitted that he did not mention a downturn in business at the termination interview.     His main recollection was that the Complainant was not 100% suitable – there were issues about the quality of her work and her attention to detail was problematic. He did not believe that she was suited to the position.

Manager A contended that the first documents referencing a disability came after her dismissal.

A reference was written by the Respondent to help the Complainant to get employment.

Manager A asserted that, in circumstances where the Respondent was not fully aware of the Complainant’s disability, the Complainant has not established facts from which it could be inferred that the Respondent had discriminatory disposition towards the Complainant.

The Complainant contends that she was dismissed because of her disability. The Respondent disputes this and asserts that the Complainant was dismissed because she was not competent in her role.

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 her.   If she 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.

In the case of Melbury Developments v Arturs Valpetters EDA0917 the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a Complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that it be of sufficient significance to raise a presumption of discrimination. However it 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 …… the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

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 first matter I have to consider is whether the Complainant has a disability within the meaning of the Acts. 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 in the past by the Courts, both within this jurisdiction and by the Court of Justice of the European Union (CJEU). Whilst it is clear that the definition of disability in the Acts is wider than that in Directive 2000/78/EC (which establishes a general framework for equal treatment in employment and occupation), I attach importance to the judgement of the CJEU in the case of HK Danmark –v- Dansk Almennyttigt BoligselskabC-335/11 and C337/11  where it was held that “that the concept of ‘disability’ in Directive 2000/78 must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one.”.

From the evidence adduced, it is clear to me that it is not in dispute between the parties that the Complainant is a person with a disability within the meaning of Section 2(1) of the Acts. I note that the Complainant suffers from a hearing impairment and memory loss and I agree that she is a person with a disability within the meaning of the Acts.

The issue in contention appears to be, whether or not the Complainant is required to formally notify the Respondent of her disability in order to avail of the protections afforded to her as an employee with a disability under the Employment Equality Acts.

In Swan O’Sullivan v Seamus Counihan (EDA 1810), the Labour Court was asked to determine if an employee, who had not formally notified his employer of his alleged disability, had been discriminated against on the grounds of disability when he was dismissed from his employment due to performance issues.

In its determination, the Labour Court found, “as was pointed out by Rimer LJ in Gallop v Newport City Council[2013] EWCA Civ 1583, before an employer can be answerable for disability discrimination against an employee, the employer must have actual or constructive knowledge that the employee was a disabled person. The knowledge need not be of a diagnosed condition or disorder constituting a disability within the statutory meaning but to material facts which could reasonably indicate the existence of such a condition or disorder.

While a respondent’s knowledge of a disability goes to the question of causation, the existence of a disability can operate as a threshold or locus standi issue. That arises because, except in cases of associative or imputed disability, a cause of action for discrimination on grounds of disability can only accrue to a person whose circumstances come within the meaning ascribed to that term by section 2(1) of the Acts.

Constructive notice arises where a person is under a duty to make enquires which, if made, would have revealed the knowledge that he claims not to have had. In Somers v W[1979] IR 94 Henchy J aptly described the concept as follows: -

“When the facts at his command beckoned him to look and inquire further, and he refrained from doing so, equity fixed him with constructive notice of what he would have ascertained if he had pursued the further investigations which a person with reasonable care and skill would have felt proper to make in the circumstances”.”

I note that the Respondent places great reliance on the fact that the Complainant did not formally notify it of her disability and suggests that this in some way absolves the Respondent from the obligation to take account of the Complainant’s disability when making a decision whether or not to retain her in its employment.   Despite its somewhat contradictory evidence, I am of the view that the Respondent was aware that the Complainant had a disability but choose to ignore it.

Applying the reasoning of Henchy J in Somers v W[1979] IR 94, I find that the Respondent was under an obligation to “inquire further” as to the nature of the Complainant’s disability. In my view, the Respondent’s failure to make such an enquiry deprived it of the defence that the Complainant’s failure to notify it of her disability somehow negated the Respondent’s obligation to take account of the Complainant’s disability before coming to a decision to dismiss her.

Accordingly, I find that the issues for decision in this case is whether the Complainant was discriminated against by the Respondent on the grounds of disability and in relation to discriminatory dismissal on the grounds of disability.

While the Complainant did not specifically make a complaint regarding the provision of reasonable accommodation, it is my view that, under the Employment Equality Acts, the issues of competence and reasonable accommodation are inextricably linked and, therefore, I am required to address the matter of reasonable accommodation in my decision.

Section 16(1)(b) of the Acts provides an employer with a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the Complainant is not fully capable, within the meaning of the Section, of performing the duties for which the Complainant has been employed. However, Section 16(3)(b) of the Acts provides that a person with a disability must be considered fully competent and capable of performing the duties attached to a particular post if she/he could do so with the provision of special measures or facilities provided the provision of such measures would not impose a disproportionate burden on the employer.

In the case of Nano Nagle School -v- Daly [2019] IESC 63 the Supreme Court has provided guidance and clarification regarding the nature of the obligations on an employer to provide reasonable accommodation to a person with a disability under the provisions of Section 16 of the Acts. In this 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 Supreme Court acknowledged that if an employee would not be able to fully undertake the duties of his/her role, even on the provision of reasonable accommodation, then there is no discrimination at issue.

MacMenamin J. returned to this point at par 107 of the judgment where he said:

“Once consultation, or other necessary steps for compliance, have been taken, an employing entity may have to ask itself the ultimate question whether, having explored the modes of accommodation, and if, prudently having consulted with an employee, the position, as defined in s.16(1), is, in fact, capable of adaptation so as to accommodate that Complainant, and whether the Complainant would be capable of performing that function thus adapted. But it is that “position” or job, not another one. If there is a challenge to this decision, this must be assessed objectively by the tribunal vested with the statutory duty of carrying out such an enquiry, and also vested with the expertise to carry out such assessment. If, on reasonable accommodation, a Complainant is unable to fully undertake the duties attached to the position, then the Act provides there can be no finding of discrimination.”

In setting out this test, the Court did accept that “the test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee” and that in most instances “removing all the duties which a disabled person is unable to perform” would inevitably become a disproportionate burden.

The Labour Court has stressed, however, that before coming to that view, the employer would “normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity”: Humphreys v Westwood Fitness Club [2004] E.L.R. 296, 300. The Court (whose decision — DEE-7/2003 — was upheld by Judge Dunne in the Circuit Court) went on to say:

“The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer should ensure that he or she is in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable, section 16(3) of the Act requires the employer to consider what, if any, special treatment or facilities may be available by which the employee can become fully capable. The section requires that the cost of such special treatment or facilities must also be considered.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

In Shannon Regional Fisheries Board v A Worker EDA 18/2013, the Labour Court said that the general principles set out in Humphreys require an employer to make a bona fide and informed decision concerning a disabled employee's capabilities before concluding that he or she is unable to perform the duties of their employment. The test was an objective one “to be applied by reference to the range of responses to be expected of a hypothetical reasonable employer, faced with similar circumstances, seeking to reach a fair and balanced conclusion having full regard to the right of a disabled person to work and earn a livelihood within the constraints occasioned by their disability”. At a minimum, it required the employer “to fully and properly assess all of the available medical evidence and, where necessary, to obtain further medical advice where the available evidence is not conclusive”.

The Respondent appeared to rely on the fact that the provisions of the Unfair Dismissals Act do not generally apply to employees with less than one year’s service when it decided to terminate the Complainant’s employment. However, since the Complainant was an individual with a disability she came within the protections of the Employment Equality Acts which empowered her to make a complaint of discriminatory unfair dismissal even though she had less than 12 months service in her employment with the Respondent.

It is clear, from the extensive legal precedent concerning reasonable accommodation cited above, that the Employment Equality Acts place an unavoidable obligation on an employer to carry out an assessment to ascertain if measures can be put in place to enable an employee with a disability to continue in employment before making any decisions to their detriment.

I am of the view that, in order to avail of the protections afforded to it by section 16(1) of the Employment Equality Acts so that it is not required to retain an employee with a disability who is not competent, an employer must address the issue of competency in a structured, open way taking full cognisance of the provisions of Section 16(3) of the Acts.  

The obligation on an employer in this regard is two-fold.   The first duty of the employer is to identify the aspects an employee’s competence which are problematic, preferably in consultation with the employee.   The employer is then required, pursuant to section 16(3) of the Acts, to assess if it is possible to put in place any reasonable measures which would ameliorate these competency issues and enable the employee to fulfil their role. Ideally, such an enquiry should be conducted with the full cooperation of the employee.

I find, therefore, that the Respondent was obliged to act pursuant to section 16(3) of the Employment Equality Acts and to assess if reasonable measures, within the meaning of the Acts, could be put in place to enable the Complainant to fulfil her role with the Respondent before terminating her employment.

There was a difference of understanding between the parties as to whether the Complainant was informed that her employment would be subject to a probationary or trial period. The Respondent asserts that the Complainant was informed that she would have to undergo an initial trial period during which her suitability for the position would be assessed. The Complainant, on the other hand, contends that she was never informed that she would have to undergo such a trial period. In the absence of any written evidence from the Respondent in support of its position, I accept the Complainant’s version of events.

From the evidence adduced at the hearing, it is clear to me that the Respondent’s engagement with the Complainant in relation to her performance was perfunctory at best. Whilst the Respondent may have had concerns about the Complainant’s performance, it did not provide written evidence that it had spoken to the Complainant formally about her performance.  Furthermore, the Respondent had not put the Complainant on notice either formally or informally that the termination of her contract of employment was likely to occur if her performance did not improve. 

Even if the Respondent had addressed the matter of the Complainant’s competency in an exemplary manner, the presence of a disability placed an additional obligation on the Respondent to assess, what, if any, reasonable measures could be put in place to accommodate the Complainant’s disability and to enable her to continue in employment.

In the circumstances, I am satisfied that the decision to dismiss the Complainant on the grounds of competence was taken in the absence of any assessment of her capabilities and whether reasonable measures could be put in place to address her shortcomings.   I find that the procedure adopted by the Respondent in this regard was fundamentally flawed.

I find, therefore, that the Complainant’s complaint of discrimination on the grounds of disability is well founded. I also find that the Complainant has established a case of discriminatory dismissal on the grounds of disability and the Respondent is not entitled to avail of the statutory defence provided for in Section 16(3) 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 the investigation as well as the evidence presented at the hearing.

Having investigated the above complaint, I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts. I find that the Respondent discriminated against the Complainant on the disability ground pursuant to sections 6(2)(a) of the Acts, in respect of discriminatory dismissal contrary to Section 8(6) of the Acts. Accordingly, I find that this complaint is well founded.

In accordance with Section 82 of the Acts, I order the Respondent to pay the Complainant the sum of €10,000 by way of compensation for the distress suffered as a result of the discrimination. This figure relates to compensation for the effects of the discriminatory treatment and does not include any element relating to remuneration.

Terms of Employment – Organisation of Working Time Act (Breaks) – Discriminatory dismissal on the disability ground – failure to provide reasonable accommodation