Complainant

Respondent

Anonymised Parties

A Manager

A Hotel/Guesthouse

Representatives

Ms. Elaine Morgan B.L. on the instructions of M.M.Halley & Son Solicitors

Gaffney Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00020001-001

25/06/2018

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

CA-00020001-002

25/06/2018

The Complainant was employed by the Respondent from 1 September, 1989 until 18 May, 2018. The Respondent operates a hotel/guesthouse and conference centre. The Complainant claims that she was constructively dismissed from her position as General Manager of the Respondent’s hotel/guesthouse following a restructuring of the business. The Complainant claims that her constructive dismissal amounts to an unfair dismissal contrary to the Unfair Dismissals Act, 1977. The Respondent disputes that the Complainant was dismissed, either constructively or otherwise, and contends that the Complainant resigned her position of her own volition.

The Complainant claims that she was subjected to discriminatory treatment by the Respondent on the grounds of her disability contrary to Section 8(1), (6), (7) and (8) of the Employment Equality Acts in relation to her conditions of employment, reclassification or grading of her post, provision of training and promotion. The Complainant also claims that the Respondent has failed to provide her with reasonable accommodation contrary to its obligations under Section 16 of the Acts. The Complainant also claims that the Respondent has subjected to her discrimination on the grounds of disability in relation to her remuneration contrary to Section 29(1) of the Acts. The Respondent disputes all of the claims of discrimination under the Employment Equality Acts.

CA-00020001-001 – Complaint under the Unfair Dismissals Act, 1997

The Complainant commenced employment with the Respondent in September, 1989. She initially worked as a receptionist and had been promoted to the role of Manager in or around 1997 when she sustained serious spinal injuries in a road traffic accident. The Complainant is a wheelchair user as a result of the injuries sustained in this accident and she returned to her employment with the Respondent after a period of nine months and progressed to the position of General Manager. The Complainant submits that she held the position of General Manager for many years thereafter and had responsibility for and control over all aspects of the day to day management of the hotel/guesthouse including the premises, equipment used, events organisation, customer bookings/dealings, staff recruitment and supervision.

The Complainant submits that, as General Manager of the Respondent, she made all executive decisions in relation to the business. The hotel/guesthouse as at 2016 did not include a food and beverage element but at times during the Complainant’s tenure had included provision to some extent in that regard. The Complainant had achieved significant personal and commercial success in the management of the business. The business under her tenure was upgraded to a four-star facility and she developed and managed the business and clientele of the house very carefully. The Complainant submits that she was the face of the business and very much the architect of its success. The success included the management of the premises through the very difficult years that ensued subsequent to 2008 and the return of the business in 2015 and 2016 to profit levels which had never been seen previously. The Complainant made executive decisions in relation to the business, was responsible inter alia for the hiring, training and management of staff, purchase of equipment, finances, event planning, customer relations and the establishing/setting of rates. The Complainant reported directly to a Board Member and had dealings with the Board itself.

The Complainant submits that the Respondent in 2016 extended its interest to include a museum and that this facility did not comprise a hospitality or food service element. The Board member to whom the Complainant had reported was replaced in July, 2016 by a new CEO, Mr. A. That CEO proceeded, in September/October 2016, to appoint several persons to new management positions to include a Financial Manager, Facilities Manager and Marketing Manager. Both the CEO and each of these new Managers based themselves and operated out of the premises where the hotel/guesthouse was located.

The Complainant submits that from the point of the appointment of the new CEO, her work experience with the Respondent changed radically. She maintains that it became apparent at an early stage that the new CEO did not regard her as a correct fit for the business. It was submitted that the Complainant was good enough to discharge the management function on an interim basis and at times pending the appointment or re-appointment of persons to the various new management positions which the CEO saw fit to create. The Complainant initially and perhaps naively regarded the appointment of the new CEO as a positive development. However, the fact that she was regarded as surplus to requirements from the management perspective became obvious quite quickly. The Complainant claims that plans and suggestions which she made were ignored. She contends that the CEO conducted himself towards her in a manner that was openly hostile and by way of example, Lego models were used to demonstrate the inadequacy of the staffing and management of the hotel/guesthouse prior to his arrival. The Complainant claims that the CEO set about the appointment of a whole management team and she was excluded from various “management activities”.

The Complainant submits that at a meeting in May, 2017, the CEO told her unequivocally that her role as Manager/General Manager would be lost and that her position would be replaced by a newly created position of Hospitality Manager. The Complainant claims the CEO indicated that she had taken the business “this far”, but that a line now had to be drawn in the sand and the hotel/guesthouse had to move forward. The Complainant claims that she was thereafter relegated to the third tier of staff. She was expected to report in, along with staff members whom she had previously recruited, managed and/or supervised, to the Hospitality Manager. The Hospitality Manager informed the Complainant that the title “Hospitality Manager” was a euphemism put in place to disguise the fact that she was actually doing the position that the Complainant previously had occupied. The Complainant submits that staff were told they should no longer report to her and it was portrayed by management that the premises had been mismanaged under her stewardship.

The Complainant was precluded from management meetings and they were moved to the basement where, by reason of her wheelchair user status, she could not physically attend. She was treated in terms of remuneration, and practically on the floor of the premises, in a manner that was radically different to the other managers and less favourable. The Complainant claims that she was not provided with a mobile phone and became aware that the contractual terms offered to other managers were more favourable to hers. The Complainant claims that the Respondent tried to impose a new contract on her in respect of a radically different role and on new terms and conditions. It was suggested that her role going forward should be limited to a 9 am to 5 pm role.

The Complainant submits that the CEO conducted himself towards her in a manner that was hostile, abrasive and involved foul language. She claims that the CEO’s conduct and the work experience overall took a dreadful toll on her mental health and well being. It was submitted that the Respondent was aware and/or ought to have been aware and on notice of the Complainant’s deteriorating health circumstances and the stress/anxiety under which she was operating. The Complainant claims that she became visibly upset in the workplace on several occasions. She claims that the CEO engaged in a hostile “lighting” on her at a meeting on 6 March, 2017 notwithstanding her physical and visible upset. The Complainant claims that she shook uncontrollably in the aftermath of the incident and was physically sick. The Complainant claims that suggestions which she made were ignored and her office was reorganised so that access to and from her workplace, in and about the office, to her desk and/or the filing system became precluded or much more difficult.

The Complainant submits that she became unwell and was prescribed anti-depressants by her General Practitioner. She claims that the hostility and adversity of the work experience persisted and that ultimately, by 3 January, 2018, she was no longer able to cope. The Complainant was certified as unfit for work at that stage and ultimately recognised that her mental health circumstances and overall sense of wellbeing was such that she could not tolerate a return to the work environment with the Respondent. The Complainant tendered her resignation on 18 May, 2018 and was left with no other option but to proceed in such a manner.

The Complainant submits that the Respondent’s conduct amounted to a fundamental and repudiatory breach of the terms of her contract of employment and its conduct otherwise was such that she could not reasonably have been expected to return to work with it. The Complainant claims that she was constructively dismissed from her employment contrary to the Unfair Dismissals Acts.

The Complainant adduced extensive oral evidence at the hearing in relation to her complaint under the Unfair Dismissals Acts.

Evidence of Ms. D, Receptionist

Ms. D stated that she was employed by the Respondent as a Receptionist from April, 2015 until end March, 2018. Ms. D stated that she recalls that the Complainant was excited upon hearing about the pending appointment of the new CEO and the restructuring of the organisation. Ms. D stated that as time elapsed, she noticed a deterioration in the working relationship between the Complainant and the CEO, Mr. A.

Ms. D stated that the Complainant was treated in an abrupt manner by Mr. A and she recalled one occasion while attending to a guest at the reception desk where she overheard him shouting at the Complainant in another room. Ms. D stated that she witnessed the Complainant being upset in the workplace on a number of occasions during the period of her employment. Ms. D stated that she was introduced to the new Hospitality Manager, Ms. B, following her arrival in October, 2017 and that she was informed by Ms. B that she would be reporting to her rather than the Complainant thereafter.

CA-00020001-002 – Complaint under the Employment Equality Act, 1998

The Complainant claims that she was subjected to discrimination by the Respondent on the grounds of disability contrary to the provisions of Section 8 of the Employment Equality Acts during her period of employment. The Complainant claims that the Respondent failed to provide her with reasonable accommodation contrary to Section 16 of the Act. The Complainant claims that she was subjected to discrimination in relation to her remuneration contrary to Section 29(1) of the Acts on the grounds of her disability.

Jurisdictional Issue in relation to Time Limits

The Complainant made submissions in relation a jurisdictional issue as to whether or not her complaint of discriminatory treatment contrary to Section 8 complies with the time limits provided for in Section 77 of the Acts. The Complainant contends that the discrimination in the instant case was ongoing during the period from September, 2016 until 18 May, 2018 when her employment was terminated by way of constructive dismissal. The Complainant claims that the various acts of discrimination to which she was subjected during this period constitutes a continuum of discrimination within the meaning of Sections 77(5) and/or 77(6A) of the Acts. The Complainant further submits that aspects of the discriminatory conduct within the continuum continued right up to the date of termination of her employment on 18 May, 2018, and therefore, by application of the provisions of Sections 77(5) and/or 77(6A) of the Acts that the claim of discrimination has been referred to the WRC within the statutory six-month time limit.

The Complainant, without prejudice to the submission that the referral is within the six-month time limit provided for in Section 77(5) of the Acts, and insofar as is necessary, submits that the Director General should exercise his discretion to extend the time limit to twelve months on the basis that there is reasonable cause to justify any necessary extension of time.

Submissions and evidence in relation to substantive claim of discrimination

The Complainant claims that she was subjected to the following acts of during the material period in question (the dates of the relevant period upon which the alleged act(s) of discrimination occurred as set out in brackets). The Complainant’s submissions and evidence can be summarised as follows.

Demotion or attempted demotion (May, 2017 to 5 March, 2018)

The Complainant in May, 2017 was subject to demotion or attempted demotion when she was advised by the CEO that her role as General Manager of the hotel/guesthouse was at an end. The Complainant was informed by the CEO that a new Hospitality Manager would be appointed and that going forward she would be required to report into that person. The Complainant was effectively removed from her general management role to the third tier of staff. The Respondent refused to consider the Complainant for the position of Hospitality Manager and derided the suggestion that training might address any deficiency that it claimed to exist as regards her capability to perform that role.

The decision to replace the Complainant announced to her in May, 2017 was given effect in July, 2017 with the appointment of the new Hospitality Manager who only lasted a matter of weeks in the position. He was subsequently replaced by Ms. B who was appointed in October, 2017. The Complainant in the interim had been re-instated to the role so that the appointment of Ms. B constituted a further discriminatory act. The replacement and demotion of the Complainant made no logical sense as she was vastly experienced in the business and had a proven track record in management of the facility.

It was submitted that the CEO conceded in his evidence that no other staff member, new or old, was demoted or had an altered or changed role imposed on them. The CEO claimed the decision as justified on the basis of an alleged lack of capacity on the part of the Complainant in the food and beverage area. The Hotel Consultancy reports obtained by the Respondent (in March, 2017), however, told a different story. Those reports spoke to the quality of the hotel/guesthouse, evidence of good management supervision and practices and clearly contemplated the continued involvement of the Complainant in the transition from 4 to 5 star. They also emphasised that the focus should remain on accommodation as opposed to food and beverage.

The demotion involved the removal of the Complainant from the weekly management meeting and exclusion of her from e-mail communication. The Complainant thereafter was required, alongside staff whom she had previously recruited, managed and trained to report into the so called “Hospitality Manager”. Matters worsened further in December, 2017 with the appointment of the Duty Manager, from whom the Complainant was also then also subject to instruction. The imposition or attempted imposition of a lesser role on the Complainant started in May of 2017 and continued right up to the termination of her employment on 18 May, 2018. The CEO and the Respondent at all times and up to the date of termination of employment continued to insist on that altered role for the Complainant. The view of the Complainant that this new role was effectively a “non” role or nothing job is, respectfully submitted by her, borne out by the CEO’s evidence that no person had been recruited to replace her.

The Complainant claims that her demotions and reclassification or grading of her role/position constitutes discrimination on the ground of her disability contrary to Sections 8(1), (6), (7) and (8) of the Employment Equality Acts.

Imposition or attempted imposition of altered terms of contract (May, 2017 to May, 2018)

The Respondent in conjunction with the demotion or attempted demotion of the Complainant sought to impose a wholly new contract of employment on the Complainant. The contract purported to incorporate, as part of the terms, a staff handbook. It removed or purported to remove the contractual entitlement of the Complainant to sick pay. The Grievance Procedure was fundamentally altered with the CEO himself the final arbiter in any staff grievance and imposed an obligation on the Complainant to work at places other than the hotel/guesthouse. The Complainant did not believe that any other staff member was subject to a reduction in contractual rights or entitlements. The conduct and misconduct of the Respondent in this regard persisted from May 2017 right up to the date of termination of employment.

The terms of the proposed new contract included an arrangement whereby the Complainant would be required, if necessary, to work at a place other than the location of the guesthouse. This requirement whilst apparently disability neutral was clearly discriminatory and failed to have any or adequate regard to the particular circumstances of the Complainant and the likely difficulty/challenges that she would have in dealing with an alternate place of work.

Publicity Shoot and Mobile Telephone (September, 2016 to May, 2018)

The Complainant claims that prior to May, 2017 there had been indications and signs of a certain attitude and approach towards her. The Complainant submits that there was a publicity shot taken of members of the management team in December, 2016 and that she was the only member of the management team not involved.

The Complainant submits that she was also the only member of the new management team not given a mobile phone. That discrimination commenced on the appointment of the first new member of the management team (Ms. A) in September, 2016 and was repeated on the appointment of other members of the new management team. The mobile telephones as supplied were used not only for telecommunications but also diary application used jointly by all members of the management team. There was no objective justification for the difference in treatment. Two other members of the new management team were office based and not required to move from one premises to another. Both of these members of the management team had access to land lines. The exclusion of the Complainant in relation to this matter persisted right up until the date of termination of employment.

Management Bonus and Pension Entitlement (September, 2016 to May, 2018)

Members of the new management team were given bonuses and the potential for pension provision as part of the terms and conditions of their employment. The Complainant was not offered a bonus or pension arrangement. It was submitted that the fact the Complainant’s income may have matched or exceeded in global terms that of other managers reflects the length of service and is not an answer to the less favourable treatment in this respect. The Complainant submits that these aspects of the Respondent’s conduct constituted less favourable treatment contrary to Section 8 and Section 29 of the Acts in respect of her conditions of employment, remuneration, terms of employment, working conditions and training or experience.

Treatment by other Managers and incident at Lego Workshop (November, 2016 to 3 January, 2018)

The Complainant was treated by the CEO and other members of the management team in a manner that was harsh, offensive and derogatory. This treatment commenced with the Lego workshop in November, 2016 and steadily worsened over the following months. In relation to this incident, the Complainant attended a Lego workshop with members of the new management team and Board members in November, 2016. The CEO decided to practically demonstrate the inadequacies of the hotel/guesthouse staff who had been in place prior to his appointment. He described that these people were dragging their feet or lying down. He used a Leo figure to demonstrate the pre-existing staff at the guesthouse (to include the Complainant) and placed it lying prone on the floor. The Complainant submits that the depiction was grossly offensive and inappropriate.

The Complainant contends that she was subjected to extremely harsh treatment in meetings with the CEO in November, 2016, January, March and May of 2017 and on other occasions. She was also treated day to day by the CEO in a manner that was harsh, intimidating and derogatory. That mistreatment continued and became a constant feature of her dealings with other members of the management team including the Hospitality Manager (Ms. B). There was an extremely hostile meeting with Ms. B on 3 January, 2018.

The Complainant submits that she endeavoured to continue with her employment notwithstanding the various adverse experiences. However, she claims that matters subsequently worsened. In August, 2017, the Complainant was required to stand back from her involvement with a specific work related event and was advised that the Marketing Manager was taking over the event. The Complainant attended a meeting with a client in August, 2017 which was also attended by the CEO and Marketing Manager. When the meeting was over, the CEO took the client and the Marketing Manager to lunch, but the Complainant was left behind. The Complainant claims that she subjected to discriminatory treatment in relation to this incident compared to other members of the management team.

It was submitted that the truth of what the Complainant alleges in relation to her treatment by the CEO and other Managers has been borne out by the evidence of Ms. D (former Receptionist with the Respondent) who observed the Complainant in an upset and distressed state whilst at work. The Complainant disputes the Respondent’s contention that her upset in the workplace was attributable to her being “change adverse” and it was submitted that such a proposition was utterly inconsistent with her robust mental disposition and the capacity which she had always shown to change and adapt.

Failure to provide reasonable accommodation (July, 2017 to January, 2018)

The Complainant submits that the Respondent failed to provide her with reasonable accommodation for her disability contrary to Section 16 of the Acts. The Complainant had worked for the Respondent for 28 years and for 20 of those years she had been a wheelchair user. The Complainant subsequent to the spinal injury had returned to work in early course and certain adaptations and accommodations had been put in place to facilitate her at work. It was submitted that the Respondent not only failed but stood over and allowed the removal and compromise of accommodations that previously existed and upon which the Complainant relied over the course of many years of employment.

This conduct commenced in Summer of 2017 with the use of the Complainant’s parking space by the Facilities Manager in the context of the refurbishment works on the premises of the guesthouse. The Complainant had a wheelchair parking space in the car park of the guesthouse premises which she used on a daily basis. That car park space during the course of renovations was taken over by the Facilities Manager and used for the placement/storage of vans/materials. This was done without consultation and persisted over some period of time. The Complainant came to work one day to find, without notice, that the disabled toilet facility was the subject of works and unavailable to her. The inconvenience in that regard was temporary but the failure of the Respondent to notify her of the situation spoke volumes in terms of its attitude and approach to her disability.

The Complainant submits that she also experienced difficulties in accessing and navigating her way around her office during the period from May, 2017 to January, 2018. The Complainant’s office was located on the ground floor and this office was increasingly being used to store items which compromised her capacity to navigate her way around it. This situation was exacerbated in December, 2017 when the new Duty Manager’s desk was placed in the already overcrowded office. This desk blocked the access route which the Complainant had always used to the office via the kitchen. The Complainant complained bitterly about what was being done but to no avail and the response was one of indifference from the Respondent. The desk remained in situ until the Complainant went absent on sick leave in January, 2018.

Exclusion from main Management meeting (May, 2017 to 3 January, 2018)

The Respondent set about the exclusion of the Complainant from the main weekly management meeting by moving the gathering to the basement. The basement was the only level of the premises not capable of wheelchair access. These meetings had at all times been held in the conference room on the ground floor. The CEO subsequent to the announcement of the Complainant’s effective replacement in May, 2017 moved the weekly management meetings to basement level. That discrimination persisted right up until the date on which the Complainant’s employment terminated and certainly until 3 January, 2018. It was submitted that the suggestion by the Respondent that the exclusion was predicated on participation by the Hospitality Manager is belied by the fact that the Complainant whilst fulfilling that role in August/September 2017 and October 2017 remained excluded.

Failure to provide assistance (November, 2016 to November, 2017)

The Complainant submits that whilst fulfilling the role of “General” or “Hospitality Manager” was required to work alone and without assistance. Requests to recruit additional staff/assistance were ignored. The new Hospitality Manager on his arrival recruited and had the assistance of a restaurant supervisor. They both left shortly after their arrival in July, 2017. Up to the arrival of a new Hospitality Manager (Ms. B) in October, 2017 the Complainant once again had to discharge the role without an assistant. However, Ms. B on her arrival immediately set about recruiting assistants to include a Duty Manager.

The Complainant adduced extensive oral evidence at the hearings in relation to her complaint under the Employment Equality Acts.

Evidence of Ms. D, Receptionist

Ms. D stated that she was aware of the difficulties that the Complainant experienced in relation to the access to her office workspace as a result of the blockages. Ms. D stated that she often received direction from the Hospitality Manager, Ms. B, and the Facilities Manager to place items in the Complainant’s office for the purpose of storage. Ms. D stated that she had to frequently remove items from the office to facilitate access by the Complainant and that the situation was a “nightmare” and that “everything was put in the office”.

Ms. D stated that she could recall the new Duty Manager’s desk being placed in front of the door that the Complainant normally used to access her office. Ms D stated that the desk blocked the Complainant’s access to the office.

CA-00020001-001 – Complaint under the Unfair Dismissals Act, 1997

The Respondent submits that it currently manages and maintains a number of buildings including a hotel/guesthouse and it is governed by a Board of Directors.

The Respondent submits that it undertook an extensive process of restructuring in 2016 which involved the expansion of its business activities and included the acquisition of a museum and upgrading of its hotel/guesthouse from a four-star to a five-star facility. The upgrading of the hotel/guesthouse involved the refurbishment of the building, the addition of a new kitchen and restaurant and the acquisition of a bar licence and a new carpark.

The Respondent submits that the Complainant commenced employment in 1989 and was working in the role of Manager of the hotel/guesthouse prior to the commencement of the restructuring of the business. The Respondent accepts that the Complainant played an instrumental role in the management of the hotel/guesthouse during her term of employment. The Respondent submits that, as in many organisations, staffing and management matters are the responsibility of the CEO. The role of the Board was to set the strategic direction of the business, adhere to proper governance and provide the resources to deliver the strategy. The Complainant was invited to and attended the strategic workshops with the Chairman of the Board, members of the Board and fellow managers that assisted in the creation of the new strategic vision for the overall business.

The Respondent submits that it was necessary to implement a reorganisation of the management and reporting structures within the business as part of the overall restructuring process. This process involved the establishment of a number of new managerial positions including a Chief Executive Officer, a Hospitality Manager and the appointment of a number of other Managers to fill specific roles that had been newly established. The Respondent took the view that it was essential for the new Hospitality Manager to have had previous experience in the area of food and beverages and of working within a five-star operation. The Respondent submits that the Complainant did not put herself forward for the position of Hospitality Manager as she did not have the relevant experience and/or qualifications for this role. Ultimately, this position was recruited externally, and the Complainant and the other newly appointed Managers were required to report directly to the Hospitality Manager.

The Respondent disputes the Complainant’s claim that she was demoted from her position as General Manager of the guesthouse or that there was any attempt to isolate or exclude her from her management role within the organisation. The Respondent disputes that the Complainant previously held the role of General Manager and submits that she retained her role as Manager and all her existing terms and conditions of employment following the restructuring of the business. The Respondent submits that the Complainant was a long serving and very valuable member of staff and it was envisaged that she would have an important role in developing the business of the guesthouse into the future.

The Respondent submits that the Complainant did not have a written contract of employment prior to the restructuring of the business in 2016 and that the newly appointed CEO engaged in extensive consultations with her to provide her with an up to date written contract which sought to clearly define her role within the organisation. It was submitted that notwithstanding this process of engagement and consultation the Complainant still refused to agree to the proposed terms or sign the written contract prior to her resignation.

The Respondent denies the Complainant’s contention that the new members of the management team who were employed as part of the restructuring of the business were afforded more favourable terms and conditions of employment than her in relation to bonuses, pay and pension entitlements.

The Respondent submits that the Complainant went absent from work on sick leave in January, 2018 and did not return to work prior to her resignation in May, 2018. The Respondent stated that the Complainant resigned her position of her own volition without invoking the established internal grievance procedures in relation to any of the issues which may have been causing her concern in relation to her employment. The Respondent submits that the Complainant was fully aware of the existence of the internal grievance procedures which had been introduced following a review of all internal HR policies by external consultants. The Respondent contends that the Complainant did not indicate at any juncture that she was not willing to be bound by these internal grievance procedures or that she had any difficulty in raising a grievance with the Finance Manager (as was required by the policy).

The Respondent submits that the correspondence sent by the Complainant’s solicitor to the Chairperson of the Board on 31 January, 2018 and to its solicitor on 18 May, 2018 cannot be construed as invoking a formal grievance but rather that this correspondence was sent in contemplation of the initiation of legal proceedings arising from her employment. The Respondent submits that there was an obligation on the Complainant to invoke the internal grievance procedures prior to resigning and that her failure to do so is fatal in terms of her claim of constructive dismissal.

The Respondent disputes the claim that the Complainant was constructively dismissed from her employment contrary to the Unfair Dismissals Acts.

Evidence of Mr. A, Chief Executive Officer

Mr. A stated that he was appointed as Chief Executive Officer of the Respondent in July, 2016 and was tasked with implementing the process of restructuring the organisation. Mr. A stated that he reported directly to the Board and took direction from the Board in relation to the implementation of the restructuring process.

Mr. A stated that the restructuring of the business also involved a reorganisation of the management structures and resulted in the creation of a number of new management positions that had not existed theretofore, including the positions of Chief Executive Officer, Hospitality Manager, Finance & HR Manager, Facilities Manager, Sales and Marketing Manager and Curator. Mr. A stated that a new management structure was implemented as part of the restructuring of the business with the newly established position of Hospitality Manager reporting directly to him. He stated that there was a further level of management that reported directly to the Hospitality Manager which included the Complainant and a number of other newly appointed Managers.

Mr. A stated that the Respondent engaged professional external consultants to advise on the organisational restructuring which included a process of consultation with all existing staff (including the Complainant) prior to the finalisation of the new management structures. There was also an audit of the existing HR practices and policies to ensure that the Respondent was compliant with employment legislation and it was recommended that staff should be issued with new contracts of employment.

Mr. A stated that one of the key aspects of the restructuring of the business was to try and maximise the profitability of the hotel/guesthouse which included the strategic aim to move from a four-star to a five-star operation. Mr. A stated that the introduction of food and beverage provision in the hotel/guesthouse, which had not been provided theretofore, was considered an essential prerequisite in obtaining five-star status. Mr. A stated that a decision was taken that it would be necessary to create the role of Hospitality Manager which would have overall responsibility for the business unit of the guesthouse to oversee the effective transition to a five-star operation. He stated that the Hospitality Manager also had responsibility for the food and beverage operations at the museum. Mr. A stated that the Respondent took the view that it was essential for the new Hospitality Manager to have had previous experience in the area of food and beverages and of working within a five-star operation. Mr. A stated that the Complainant had the opportunity to put herself forward for this role but chose not to do so as she indicated that she did not have the requisite qualifications and/or experience to carry out this role.

Mr. A stated that the Complainant was favourably disposed to the reorganisation of the business and the introduction of the food and beverage initiative at the outset of the restructuring process. However, he stated that as time elapsed, the Complainant became less receptive to the restructuring and was “unable to deal with the change”. Mr. A disputes the Complainant’s contention that she was demoted from the position of General Manager as a result of the restructuring process or that there was any attempt to give her “an arbitrary or lesser role” within the business. Mr. A stated that the Complainant held the role of Manager (and not General Manager) of the hotel/guesthouse prior to his appointment and that she retained her role as Manager after the new management structures were implemented. He stated that the Complainant retained some of her existing managerial duties following the restructuring and was given some additional duties in lieu of some of her existing duties which became part of the responsibility of the Hospitality Manager.

Mr. A also disputes the Complainant’s contention that she was excluded from management meetings or subjected to humiliation in the workplace on an ongoing basis following the implementation of the new management structures. Mr. A stated that the Complainant was invited to, and attended, two management meetings each week appropriate to her role namely the revenue and the functions meetings. Mr. A also denied the Complainant’s claim that he shouted at her or frequently used foul language in his dealings with her.

Mr. A stated that the Complainant did not have a written contract of employment prior to the restructuring of the business and that he engaged in extensive communication and consultation with her during the period from May, 2017 to July, 2017 with a view to providing clarity on her role within the organisation. Mr. A stated that the Complainant’s existing terms and conditions of employment were maintained in the new written contract including her position as Manager and her salary. He stated that the Complainant was also allowed to retain her existing annual leave entitlement of 29 days which was more favourable than the other newly appointed managers who were afforded an entitlement of 23 days. Mr. A stated that the Complainant refused to sign the new contract despite attempts to address and alleviate any concerns which she raised either directly with him or via her solicitor.

Mr. A stated that there was a term included in the Complainant’s written contract that her normal hours of work would be 9 am to 5:30 pm from Monday to Friday and that evening or weekend work may be required from time to time. He stated that these hours of attendance were required to facilitate the operational needs of the business. Mr. A stated that he spoke to the Complainant on several occasions about her hours of work and explained the requirement for same, but she refused to work these hours as she had not been required to work set hours prior to the restructuring of the business. Mr. A stated that he could have dealt with the Complainant’s refusal to comply with this requirement as a disciplinary matter but chose not to so in recognition of the significant process of change that was being undertaken within the organisation.

Mr. A stated that the he reported directly to the Board and kept it fully updated in relation to the Complainant’s contractual situation at the normal periodical meetings. Mr. A stated that he was mandated by the Board to make the necessary changes to the organisational and management structure of the business in order to deliver on the strategic plan adopted by the Board.

Mr. A disputes the Complainant’s contention that other newly appointed managers were afforded more favourable terms and conditions of employment in relation to matters such as salary, bonuses and pension entitlements.

Mr. A stated that the Complainant failed to invoke the Respondent’s internal grievance procedures in relation to any of the workplace related issues which she contends resulted in her having to resign from her position. Mr. A stated that the Respondent had engaged external HR consultants to review and audit the organisation’s policies and that a new Employee Handbook was developed which included an internal grievance procedure for employees. Mr. A stated that the Complainant was made fully aware of the internal grievance procedures but instead of utilising same she sought to bypass the internal procedures and refer her grievance directly to the Board.

Mr. A stated that he brought this matter to the attention of the Board and was informed that it was an operational matter and should be dealt with through the internal grievance procedures. Mr. A disputes the Complainant’s contention that she reported directly to the Board prior to his appointment as CEO but rather that she reported to his predecessor, who was the former Secretary of the Board. Mr. A stated that the Complainant’s solicitor engaged directly with the Board through written correspondence in January, 2018 and that the Board responded to her solicitor in relation to the issues she had raised concerning her employment.

Mr. A also disputed the Complainant’s contention that he attempted to impose a job and contract on her that was radically different to that which she had held prior to the restructuring of the organisation or that she was subjected to a demotion. Mr. A denied that the Complainant was excluded from the management team following the restructuring process or that there was any attempt to manage her out of the business.

CA-00020001-002 – Complaint under the Employment Equality Act, 1998

The Respondent disputes the Complainant’s claim that she was subjected to discrimination on the grounds of disability contrary to the provisions of Section 8 and/or Section 29 of the Acts during her period of employment. The Respondent also disputes the claim that it failed to provide the Complainant with reasonable accommodation contrary to Section 16 of the Acts.

Jurisdictional issue in relation to Time Limits

The Respondent submits that the claim of discrimination has not been referred to the WRC within the applicable time limit of six months as provided for in Section 77(5) of the Acts. The Respondent submits that the Complainant has failed to identify or particularise any specific act or acts of discrimination which allegedly occurred within the six-month period prior to the referral of the instant complaint.

The Respondent submits that the Complainant has indicated on the Complaint Referral Form that the date of the most recent occurrence of discrimination was 3 January, 2018. The Respondent submits that it is most unusual that such date is specified to be the last date upon which the Complainant maintains that she was subjected to discrimination, as it is not detailed or explained or described thereafter in the narrative of her complaint, other than “ultimately by January, 2018, the Complainant is no longer able to cope”. The Respondent submits it is remarkable that it is only by way of the Complainant’s submission to the WRC dated 4 March, 2019 that this date is referenced and is also the basis upon which a submission is made by her for an extension of the statutory time limit. Moreover, it is submitted that solicitors acting on behalf of the Complainant sent a letter to the Respondent on 31 January, 2018 and which, quite remarkably, made no reference to any particular incident having occurred on 3 January, 2018. There was no mention of this date in the further exchanges of correspondence that took place between the legal representatives acting for the parties which culminated with the notification of her resignation on 18 May, 2018. The Respondent submits that the Complainant’s attempt to particularise the claim of discrimination post referral of the complaint is highly prejudicial to its defence of the instant complaint.

The Respondent disputes the Complainant’s contention that she was subjected to ongoing acts of discrimination during her period of employment which constitute a continuum of discrimination within the meaning of Sections 77(5) and/or 77(6A) of the Acts.

In response to the application for an extension of the statutory time limit relating to the referral of the instant complaint, the Respondent submits that the Complainant has not established that the failure to refer the complaint within the statutory period of six months occurred as a result of reasonable cause. The Respondent submits that any such application for an extension should therefore be refused.

Submissions in relation to substantive claim of discrimination

The Respondent submits it is noteworthy that in the Complainant’s submission it is contended that the interaction between the Complainant and the Respondent constitutes discrimination solely on the subjective basis that “no other logic for that which occurred ….” would provide an explanation for the perceived deterioration in her relationship between the parties over a sustained period of time. The Respondent submits that the absence of logic has never been, nor could it ever be, a basis upon which a claim of discrimination could be grounded or sustained. The Complainant’s position in that regard is at complete odds with the definition of discrimination, is purely speculative in nature and based on nothing more than a misinterpretation by her of the circumstances in which she found herself. The Respondent further submits it is noteworthy that the Complainant maintains that certain accommodations were undone by the Respondent “which had been in place for years and on which the Complainant relied as the means on which to go about her daily work life”. However, the Complainant fails to actually identify what such accommodations were and what was actually undone, and this very allegation is a perfect example of the general theme of the Complainant’s claim and should be considered in the context of other such groundless and subjective claims which have not been supported by any evidential corroboration.

The Respondent’s submissions in response to the claim of discrimination can be summarised as follows.

Demotion or attempted demotion

The Respondent disputes the Complainant’s claim that she was demoted following the appointment of the new CEO, Mr. A. The Respondent submits that there was a persistent presumption by the Complainant that her interactions with the Respondent were discriminatory in nature, rather than her refusal to consider the bona fides, necessary and considered changes that took place following the reconstitution of the Board of Directors. The Complainant’s resistance to such change was evident from a very early stage despite constant communication and reassurance from the Respondent in relation to all the concerns that she raised. The Complainant illegitimately construed that such changes were implemented and designed to, in some way, either provide an obstruction to the performance of her duties, an/or serve as a dilution of her duties and/or perceived as a demotion.

The Respondent submits that the decision to engage a Hospitality Manager was met with resistance and trepidation by the Complainant and that she took exception with having “to report into the Hospitality Manager”. The Respondent submits that the Complainant has failed to acknowledge that there was extensive communication with her from the CEO during the period from May, 2017 to July, 2017 on this matter. The Respondent submits that there was voluminous e-mail communication between the parties (which was adduced in evidence) and which ultimately appeared to result in resolution, but which now is being used to bolster her claims of discriminatory treatment. The Respondent submits that the Complainant accepted the restructured role for a period of approx. seven months from July, 2017 to January, 2018 notwithstanding her claims that it amounted to a demotion.

Imposition or attempted imposition of altered terms of contract

The Respondent disputes the Complainant’s claim that she was subjected to discrimination in relation to the alleged attempts to impose a new contract on her which altered her existing terms and conditions of employment. The Respondent submits that there was extensive communication and discussions with the Complainant during the period from May, 2017 to October, 2017 in relation to her proposed new terms and conditions of employment following the restructuring of the business. This consultation with the Complainant included both oral and written communications including letters from the CEO (Mr. A) to her on 30 May, 2017 and 18 October, 2017 which extensively addressed any issues which she had raised in relation to the terms of her contract.

Publicity Shoot, Mobile Telephone, Bonus and Pension Entitlements

The Respondent emphatically denies that the Complainant was deliberately mot contacted in relation to the “publicity shoot”.

The Respondent also denies the claim that the Complainant was subjected to discrimination in relation to the non-provision of a mobile phone to her in circumstances where other members of the management team received a mobile phone. The Respondent submits that this must be considered in the context that the Complainant, following the management restructure, was reporting to such managers and therefore, despite her contention that that such individuals amount to comparators, provides a stark contradiction of her claim, whereby on the one hand she believes she has been demoted, but on the other hand maintains an entitlement to any contractual benefits such as the comparators enjoyed. The Complainant maintains that the only justification for such alleged unfavourable treatment is discriminatory in nature, but any such contention bears no merit if the comparator maintained by her operates at a higher managerial level.

Similarly, the Respondent disputes the Complainant’s contention that the alleged receipt of “a bonus payment and pension” by members of management constitutes discrimination and submits that this is a fundamental fact of business and commerce that employers are entitled to remunerate employees and offer benefits to employees at all levels in excess of their counterparts. It was submitted that this could occur in circumstances where such individuals are in demand in order to secure their engagement and dictated by the urgency of the requirement or the prevailing market conditions.

Treatment by other Managers and incident at Lego Workshop

The Respondent disputes the Complainant’s claim that she was subjected to discrimination in relation to the alleged incident that occurred at the Lego Workshop in November, 2016. Mr. A, CEO, adduced evidence in relation to this event and stated that the purpose of the workshop was to review the existing business structures and to look ahead to the future strategic direction of the business. Mr. A stated that the workshop was attended by management and members of the Board and all participants (including the Complainant) were afforded the opportunity to contribute to the discussions. Mr. A stated that all participants were asked to use Lego bricks as a means of depicting a future vision for the business. Mr. A emphatically denies that there was any attempt by him to make derogatory remarks about the pre-existing staff of the hotel/guesthouse (including the Complainant) at this workshop either verbally or by way of demonstration using the Lego bricks.

The Respondent submits that the Complainant has failed to adduce any cogent evidence that the alleged less favourable treatment in relation to this incident was in any way connected to the fact of her disability. The Respondent submits that its position on this matter is strengthened by the fact of the Complainant’s own admission that other members of staff who did not have a disability were also allegedly subjected to the same treatment at his workshop.

The Respondent denies the Complainant’s claims that she was treated or spoken to in a harsh, derogatory and/or inappropriate manner by the CEO (Mr. A) or other members of the management team. The Respondent submits that the Complainant has failed to adduce any cogent evidence of the specific dates or incidents on which the alleged inappropriate treatment occurred or that it was in any way connected to the fact of her disability.

The Respondent also denies the Complainant’s claim that she was subjected to discrimination in relation to the alleged incident whereby she was not invited to lunch by the CEO following her attendance at a work-related event in August, 2017. The Respondent submits that the Complainant would appear to contend that the only reasonable explanation for her not receiving an invitation to this lunch could conceivably be discrimination. The Respondent contends that the Complainant has failed to provide any corroboration for this allegation which appears to be a common trend in relation to her claim of discrimination.

Failure to provide reasonable accommodation

The Respondent disputes the Complainant’s claim that it failed to provide reasonable accommodation for her disability. The Respondent adduced comprehensive evidence from the CEO (Mr. A) and the Facilities Manager (Mr. C) in relation to this issue.

Mr. A (CEO) stated that there were a number of measures put in place by the Respondent in the workplace to accommodate the Complainant’s disability. Mr. A stated that these measures included the allocation to her of a car parking space, wheelchair access within the workplace and an upgrading of the wheelchair accessible toilets. Mr. A stated that the Complainant did not raise any concerns with him or any other members of management in relation to the alleged failure to provide suitable measures to accommodate her disability.

Evidence of Mr. C, Facilities Manager

Mr. C, Facilities Manager, stated that renovations were carried out on the premises of the guesthouse during May, 2017 which included the installation of a new kitchen and upgrading works to the reception and lobby areas of the building. Mr. A stated that the Complainant was kept fully informed in relation to the nature of the renovations and works that were being carried out. Mr. A disputes the Complainant’s contention that she did not have access to the disabled car parking spot for the duration of the renovations. Mr. A stated that the Complainant was the only person allowed to use the carpark during this period. He stated that there was always a carparking spot available for the Complainant even if the disabled carparking spot was temporarily unavailable on occasion to facilitate the works.

Mr. C stated that it was necessary on occasion to park a trailer in the disabled carparking spot to load/unload materials, but he ensured that this work was carried out as early as possible in the morning prior to the Complainant’s arrival at work. Mr. C also denied the Complainant’s claim that access to the disabled toilets was denied to her at any stage during the period of the renovations.

Exclusion from main Management meeting

The Respondent disputes the Complainant’s contention that a decision was taken to move management meetings to the basement level solely to hinder her capacity to attend on the basis that it was not wheelchair accessible. The Respondent submits that such meetings did not require the Complainant’s attendance and that she was involved in weekly sales and revenue meetings held elsewhere. It was conveyed to the Complainant in correspondence that such meetings would not include her and other managers, and therefore, it is grossly misrepresentative of her to blatantly avoid any reference to documentation and communication between the parties that clarifies matters in this regard. The rationale behind the decision of having separate and distinct meetings in keeping with the management business restructure was discussed and explained at great length with the Complainant and indeed all other employees, but which it would appear, was met with the inevitable resistance by her.

Failure to provide assistance

The Respondent disputes the Complainant’s contention that the new CEO repeatedly refused her requests for additional resources and staff or that the new Hospitality Manager once appointed in October, 2017 was allowed to recruit additional staff. The Respondent submits that a contradiction arises in relation to the Complainant’s position on this matter in that she claims to have repeatedly sought additional resources from the CEO, which included an enlarged staff, and then appears to have challenged the appointment by the Respondent of Ms. B (the new Hospitality Manager) who was responsible for recruiting additional staff, including a Duty Manager who took up such a position in advance of Christmas 2017.

CA-00020001-001 – Complaint under the Unfair Dismissals Act, 1997

As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that:

““dismissal”, in relation to an employee, means—

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two tests, referred to as the “contract” and the “reasonableness” tests. It summarised the “contract test” as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The “reasonableness test” assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, the employee is justified in leaving.”

In Berber v Dunnes Stores [2009] 20 E.L.R. 61, the Supreme Court stated that mutual trust and confidence is an implied term in every contract of employment. The Court held “There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.”

The Supreme Court in Berber also set out the following approach when assessing whether a contractual term of mutual trust and confidence was repudiated or broken by an employer’s conduct, namely: “1. The test is objective. 2. The test requires that the conduct of both employer and employee be considered. 3. The conduct of the parties as a whole and the accumulative effect must be looked at. 4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

In both types of situation, the conduct of the employer must be of sufficient gravity so as to entitle the employee to terminate the contract without notice or render it reasonable for him or her to do so. Therefore, 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 her contract of employment. The Complainant has essentially relied upon the contract test to ground her claim of constructive dismissal in the instant case. Therefore, I will examine if there was a repudiatory breach of the Complainant’s contract by the Respondent.

In reaching my decision I have taken into account all of the evidence, both written and oral, submitted by the parties.

The Complainant claims that the Respondent conducted itself in a manner which amounted to a fundamental and repudiatory breach of the terms of her contract of employment and that this conduct was such that she could not reasonably have been expected to continue with her employment. The Complainant contends that she was effectively demoted from her position as General Manager following a restructuring of the organisation and that the Respondent attempted to impose a new contract of employment on her which resulted in a radical change in her role and diminution in her responsibilities. The Complainant contends that the way she was treated by the Respondent had a devastating impact on her mental health and wellbeing such that she could not tolerate a return to work following a lengthy period of sick absence and she was ultimately left with no option but to resign her position.

The Respondent denies that the Complainant was dismissed, either constructively or otherwise, and contends that she left her employment of her own volition. The Respondent contends that a significant process of restructuring was undertaken within the organisation following the appointment of a new CEO in 2016. This process of restructuring resulted in a reorganisation of the overall management structures within the business and the appointment of a number of new members of the management. The Respondent disputes the Complainant’s claim that she was demoted from her position as General Manager or that there was any attempt to isolate or exclude her from her management role within the organisation. The Respondent contends that the Complainant was employed as Manager (and not General Manager) and that she retained this role and all her existing terms and conditions of employment following the restructuring of the business, but she was unable to deal with the process of change which was necessitated by the process of restructuring. The Respondent contends that the Complainant left her employment without invoking the internal grievance procedures in relation to her concerns and thereby denied it the opportunity to try and resolve these issues prior to her resignation.

In order to decide if the there was a repudiatory breach of the Complainant’s contract by the Respondent, it is necessary to consider the nature of her position in the organisation both prior to and after the restructuring of the business which commenced in 2016. It was not in dispute that this process of restructuring resulted in significant changes to the Respondent’s business both from an operational and management perspective. I note that the Respondent’s business was primarily centred around the operation of a hotel/guesthouse prior to 2016 whereas the overall activities of the business were expanded following the restructuring with the acquisition of a museum and a significant revamp of the hotel/guesthouse which included the commencement of food and beverage provision. The revamp of the hotel/guesthouse also included an extensive refurbishment of the building and a strategic plan to upgrade the facility from a four-star to a five-star operation.

The Complainant had commenced employment with the Respondent in 1989 and it was not in dispute that she had been an exemplary employee prior to the commencement of the restructuring process in 2016. Indeed, I note that it was also not in dispute that the Complainant had overseen the transition of the business from a three-star to a four-star operation and had also played a significant role in the achievement of a notable increase in turnover during the post-recession period from 2014 to 2016. There was a dispute between the parties as to whether the actual title of the Complainant’s position prior to the restructuring was that of “Manager” or “General Manager”. However, notwithstanding the dispute on this point which I am not in a position to definitively resolve from the evidence adduced, I am satisfied that the Complainant had held the most senior management position within the hotel/guesthouse for a significant period prior to the restructuring and that she had responsibility for all aspects of the day to day management of the business. I am also satisfied from the evidence adduced that the Complainant had a substantial amount of autonomy in the discharge of her role and that she reported directly to the Company Secretary who was a member of the Board of Directors.

It was common case that there was also a reorganisation of the management structures within the organisation as a result of the restructuring process. I note that this reorganisation commenced with the appointment of a new CEO (Mr. A) in July, 2016, who replaced the previous Company Secretary, and that Mr. A was tasked by the Board with the implementation of the new management structures. The Respondent created the new position of Hospitality Manager, who reported directly to the CEO, and had overall responsibility for the management of the business unit of the hotel/guesthouse and the oversight of the transition to a five-star operation. There was also a further layer of management established below the level of Hospitality Manager and a number of appointments were made at this level including a Facilities Manager, Finance/HR Manager, Sales and Marketing Manager and Curator. It is clear that this effectively resulted in the establishment of a new three-tier management structure within the organisation which contrasted to the arrangements that had previously existed whereby the Complainant had been the most senior manager in the hotel/guesthouse and had reported directly to the Company Secretary.

I note that the Complainant was informed by the CEO over the course of a number of meetings in May, 2017 that her existing role within the management structure would cease to exist and that a number of the tasks and duties associated to her role would be transferred to the new role of Hospitality Manager. Having regard to the evidence adduced, I am satisfied that the senior management position which the Complainant had held prior to the restructuring of the business was, in effect, replaced by the new role of Hospitality Manager.

There was a dispute between the parties on the issue as to whether the Complainant was afforded the opportunity to apply or seek consideration for appointment to the new role of Hospitality Manager. On balance, I have found the Complainant’s evidence on this matter to be more compelling and I accept her evidence that she was not offered any opportunity to apply for the position of Hospitality Manager as the Respondent did not consider her suitable on the basis of her perceived lack of experience in the food and beverage sector and in the management of a five-star operation. Having regard to the evidence adduced, I find that there is significant reason to question the bona fides of the Respondent’s decision on this matter given that there would appear to be a very high degree of similarity and overlap between the managerial role that the Complainant had successfully carried out for a significant period of time prior to the restructuring and the newly established role of Hospitality Manager. I take the view that my conclusions on this matter are further strengthened by virtue of the Complainant’s undisputed evidence that she successfully performed the role of Hospitality Manager for two periods on an interim basis pending permanent appointments to the position.

There ensued a period of engagement between the CEO and the Complainant in relation to her new role within the organisation during the period from May, 2017 to July, 2017 and the discussions in relation to this matter occurred in the context of the Respondent’s decision to provide her with a new written contract of employment. It was not in dispute that the Complainant had been operating on the basis of an oral contract with the Respondent for the duration of her employment theretofore. The Complainant was ultimately informed by the CEO that she was being assigned the role of Revenue Manager on the basis that such a role “would best suit her skill set and experience” and that she would have to report to the new Hospitality Manager. I am satisfied that the Complainant expressed grave reservations to the Respondent about the nature of the proposed new role as Revenue Manager and she made it clear to the Respondent that she was not prepared to sign the new contract of employment on the basis that it fundamentally altered her existing terms and conditions of employment.

Having regard to the evidence adduced, I am satisfied that the proposed role of Revenue Manager bore little, if any, resemblance to the Complainant’s previous role as a senior manager and that it constituted a significant diminution both in terms of the level of responsibility and the overall stature which she had previously held within the organisation prior to the restructuring. I note that the new contract which the Respondent presented to the Complainant maintained a number of her existing terms and conditions such as the level of her salary, a nominal role as Manager and her annual leave entitlements. However, notwithstanding the foregoing, I am satisfied that the Complainant was afforded no other alternative but to accept a significantly reduced role within the new management structure. It is clear that the Complainant, notwithstanding the grave reservations which she had expressed about having to accept this demotion, sought to perform her new role to the best of her ability. However, I am satisfied that the Complainant was subjected to further isolation by senior management thereafter and a much-diminished role within the organisation. It is clear that the situation in the workplace became intolerable for the Complainant and had a very serious impact on her health and mental wellbeing with the result that she went absent on certified sick leave on 3 January, 2018 and ultimately resigned her position on 18 May, 2018.

I note that the Complainant’s resignation was immediately accepted by the Respondent whilst she was absent on sick leave. Despite the serious issues which the Complainant had raised surrounding the reasons for her resignation the Respondent did not take any measures to try and dissuade her from resigning or at the very least to delay any such decision until she was medically fit to return to work.

Having regard to the totality of the evidence, I find that the Respondent sought to impose a significantly altered and reduced role on the Complainant which clearly amounted to a demotion from the senior managerial position that she had previously held within the organisation. Moreover, I find that the unilateral actions of the Respondent in imposing this new role on the Complainant constituted a fundamental change to one of the key terms of her existing oral contract of employment. In applying an objective test as set in in the Berber case, I am satisfied that the manner in which this demotion was effected by the Respondent and the consequent detrimental effect which it had on her health resulted in an undermining of the relationship of trust and confidence between the parties. In the circumstances, I find that the cumulative effect of these matters which led to the Complainant’s resignation constituted a fundamental breach by the Respondent going to the root of her contract of employment.

I must also address the issue as to whether the Complainant acted reasonably by resigning prior to invoking a formal grievance through the Respondent’s established internal grievance procedures. In normal circumstances a Complainant who seeks to establish a claim of constructive dismissal must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. The Employment Appeals Tribunal held in the case of Conway v Ulster Bank Limited UD474/1981 that the employee must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign.

The Respondent has argued that the Complainant’s failure to invoke the formal internal grievance procedures, prior to her resignation, is fatal to her claim of constructive dismissal. I note that the said internal grievance procedures were implemented by the Respondent during the latter part of 2017 following the completion of an audit on its existing HR policies by a firm of external consultants. Whilst I accept that the Complainant did not utilise the newly established grievance procedures, I am satisfied that there was no obligation on her to do so under her existing contractual arrangements at that juncture. The Complainant adduced compelling evidence, which the Respondent was unable to refute, that the appropriate procedure for initiating a formal grievance in accordance with her existing oral contractual arrangements was via the Board. I find it particularly significant that the Respondent did not present evidence at the hearing from any of the members of the Board in relation to these matters.

The Respondent sought to provide the Complainant with a new written contract in May, 2017 which included a term that would have required her to utilise the new internal grievance procedures. However, it is clear that the Complainant refused to sign the new written contract prior to her resignation, and she expressly outlined her objection to be bound by any requirement to utilise the internal grievance procedures in correspondence sent to the Chairperson of the Respondent’s Board via her solicitor on 31 January, 2018. I am satisfied that the specific nature and details of the Complainant’s workplace related grievances were clearly and unambiguously articulated to the Respondent’s Board in this letter. In the circumstances, I find that the Complainant had fully ventilated and articulated the precise nature and details of her grievance to the Respondent a number of months prior to her resignation in accordance with the procedures which had been established through custom and practice in her contract of employment.

Having regard to the foregoing, I find that the Complainant has satisfied the test that the Respondent committed a repudiatory breach of her contract of employment and that it was reasonable of her to resign from her employment. Accordingly, I find that the Complainant’s complaint of unfair dismissal is well founded.

CA-00020001-002 – Complaint under the Employment Equality Act, 1998

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.

The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v. Valpeters EDA0917 where it held that Section 85A: "…. provides for the allocation of the probative burden in cases within its ambit. This requires that the 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 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.”

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". It was not in dispute that the Complainant has a disability within the meaning of Section 2 of the Employment Equality Acts at all times relevant to this complaint and I concur with that view.

Counsel for the Complainant confirmed at the oral hearing that the claims in relation to harassment contrary to Section 14A and victimisation contrary to Section 74(2) were withdrawn.

Accordingly, the issues for consideration by me are (1) whether or not the Complainant was subjected to discriminatory treatment on the grounds of her disability in relation to her conditions of employment, reclassification and grading of her post, provision of training and/or promotion contrary to Section 8 of the Acts (2) whether as a person with a disability within the meaning of Section 2 of the Acts, the Respondent has failed to provide the Complainant with reasonable accommodation contrary to Section 16(3) of the Acts and (3) whether or not the Complainant has been subjected to discrimination on the grounds of disability in terms of her rate of remuneration contrary to Section 29 of the Acts.

Conditions of Employment, Reclassification/Grading, Provision of Training and/or Promotion

The first element of the complaint that I must consider under the Acts relates to the Complainant’s claim that she was subjected to discriminatory treatment on the grounds of her disability in relation to her conditions of employment, reclassification and grading of her post, provision of training and/or promotion contrary to Section 8 of the Acts.

Jurisdictional Issue in relation Time Limits

The Complainant contends that she was subjected to various acts of discriminatory treatment over the period from September, 2016 to 18 May, 2018 (i.e. the date of termination of her employment) which constitute a continuum of discrimination within the meaning of Section 77(5) and/or Section 77(6A) of the Acts. The Complainant contends that the alleged acts of discrimination which occurred prior to the cognisable period of this complaint, namely 26 December, 2017 to 25 June, 2018, should be considered as part of a continuum of discriminatory events.

The Respondent disputes the Complainant’s contention that she was subjected to any specific act and/or ongoing acts of discrimination during her period of employment which constitute a continuum of discrimination within the meaning of Section 77(5) and/or Section 77(6A) of the Acts. The Respondent submits that the Complainant has failed to identify any specific act or acts of discrimination that allegedly occurred during the six-month period prior to the referral of the complaint and therefore, the complaint has not been referred to the WRC within the six-month time limit provided for in Section 77(5) of the Acts.

The time limits which govern the referral of complaints under the legislation as set out in Section 77 of the Acts.

Section 77(5)(a) of the Acts 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.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.”

Section 77(6A) provides: -

“For the purposes of this section —

(a) discrimination or victimisation occurs—

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

The effect of these provisions is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the WRC unless the discrimination in issue is part of a continuum of events. In considering this matter, I have taken note of the case of County Cork VEC –v- Ann Hurley EDA1124 where theLabour Court considered the issue as to whether events which occurred outside the cognisable period for the complaint made could be considered as part of a regime or continuum and thus within the jurisdiction of the Court. It was held by the Labour Court 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 (Barclays Bank plc v Kapur IRLR 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion”. The Labour Court also held in this decision that: “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 of victimisation (or discrimination) 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. ”

It is clear from the foregoing that the Acts allow for circumstances in which acts of discrimination that occurred outside the normal time limit can nonetheless be relied upon provided the claim is submitted within the six months of the point in which the discrimination ended. In the circumstances, it is necessary for me consider if the incidents of alleged discrimination relied upon by the Complainant can be regarded as part of a continuing act of discrimination for the purpose of Section 77(5) or Section 77(6A) of the Acts. In that regard, applying the principles identified above to the instant case, it appears that the admissibility of the claim in so far as it relates to alleged acts of discrimination in the period before 26 December, 2017, depends upon the validity of the claim of discrimination which allegedly occurred within the six-month period after that date. Admissibility is also dependent upon some link being established between the occurrences outside the time limit, and those inside the cognisable period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely.

Therefore, in accordance with the consistent approach applied by the Labour Court in circumstances such as those that prevail in the instant case, I must first consider whether an act or acts of discrimination occurred within the cognisable period for the within complaint before I can consider whether events outside of that period can be considered to be part of a continuum or regime of discrimination and within my jurisdiction. It is only in circumstances where such a conclusion was to be reached that I would have the jurisdiction to consider events which occurred prior to the cognisable period.

The present complaint was referred to the WRC on 25 June, 2018 and therefore the cognisable period for the purpose of the complaint in accordance with the time limits provided for in Section 77(5) of the Acts is the six-month period prior to the referral of the complaint, namely 26 December, 2017 to 25 June, 2018. The Complainant indicated on the Complaint Referral Form that the date of the most recent occurrence of discrimination was 3 January, 2018. The claim of discriminatory treatment in relation to the alleged contraventions of Section 8 of the Acts was set out in broad terms on the Complaint Referral Form. However, the information contained therein was lacking in specific detail in relation to the precise nature of the specific incidents of discrimination and the dates on which they were alleged to have occurred.

Therefore, in order to facilitate my investigation of this complaint, I requested the Complainant to clearly set out and particularise by way of written submission the alleged occurrences of discriminatory treatment and the specific dates upon which the individual acts within the continuum were alleged to have occurred. The Complainant provided a written submission on this matter which elaborated on the alleged occurrences of discriminatory treatment contrary to Section 8 of the Acts. The Complainant’s submissions were copied, in turn, to the Respondent for information and reply. The parties were also afforded the opportunity to address this matter by way of evidence and oral submissions at the hearing of the complaint.

Having carefully considered the evidence and submissions of the parties in relation to the alleged occurrences of discriminatory treatment contrary to Section 8 of the Acts, I am satisfied that the following facts have been established in relation to this matter:

·       Demotion or attempted demotion of the Complainant: In accordance with my findings above, I am satisfied that the Complainant was subjected to a demotion from the senior managerial position which she had previously held prior to the restructuring of the organisation and the implementation of the new management structures. I note that the CEO wrote to the Complainant on 24 August, 2017 in which it was stated: “I attach a further copy of notification of change of your terms of employment and duties dated 30 May, 2017 which took effect on the appointment of the new Hospitality Manager on 10 July, 2017”. I am satisfied that the oral evidence adduced by the parties confirms that the Complainant’s demotion actually occurred and took effect on 10 July, 2017.

·       Imposition or attempted imposition of altered terms of contract: I am satisfied that the issue in relation to the imposition of altered terms of the Complainant’s contract of employment was inextricably linked to the issue relating to her demotion. Whilst it is clear that the Complainant opposed the changes to her contractual terms and that there was communication between the parties in relation to this matter after the 10 July, 2017, I am satisfied that the actual changes to her contract were effected on that date. In the circumstances, I find that 10 July, 2017 is the latest date upon which the alleged act or acts of discrimination in relation to the instant and the abovementioned incident could have occurred for the purposes of Section 77(5) of the Acts. Therefore, the alleged acts of discrimination in relation to these matters did not occur within the statutory six-month time limit.

·       Mobile Telephone: The Complainant has alleged that she was subjected to discrimination on the grounds of her disability on the basis that she was the only one of the new management team that was not given a mobile phone. I am satisfied that all of the members of the new management team were appointed by the Respondent and in situ by 9 October, 2017 (i.e. the date of appointment of the new Hospitality Manager, Ms. B). In the circumstances, I find that 9 October, 2017 was the latest date upon which the alleged act of discrimination in relation to this matter could have occurred for the purposes of Section 77(5) of the Acts. Therefore, the alleged act of discrimination in relation to this matter did not occur within the statutory six-month time limit.

·       Treatment by the CEO and other Managers: The Complainant has claimed that she was treated by the CEO and other members of the management team in a manner that was harsh, offensive and derogatory. She contends that she was subjected to such treatment on a number of occasions commencing with the Lego workshop in November, 2016 and culminating with the extremely hostile meeting with the Hospitality Manager, Ms. B on 3 January, 2018. Having regard to the evidence adduced, I am satisfied that the Complainant has failed to identify any specific incident other that the incident that occurred on 3 January, 2018 which falls within the cognisable period upon which it is alleged that she was subjected to discriminatory treatment on the grounds of her disability in terms of her interaction with other members of management. In relation to the meeting that occurred with Ms. B on 3 January, 2018, I note that the Complainant adduced evidence that this meeting was “very fraught” and that Ms. B raised a number of matters which included an issue about the Complainant having taken two days annual leave and the requirement to work set hours from 9 am to 5 pm. The Complainant stated that she became extremely upset and was distraught following this meeting and that she could no longer continue in the Respondent’s employment thereafter. Having carefully considered the evidence adduced in relation to the events that occurred on 3 January, 2018, I find that the Complainant has failed to establish facts from which it could be reasonably inferred that she was subjected to less favourable treatment on the grounds of her disability in relation to her interaction with Ms. B on this occasion.

·       Exclusion from Main Management Meeting: The Complainant has claimed that she was excluded from the main weekly management meeting by moving the gathering to the basement. I am satisfied that the reason the Complainant was excluded from the main management meeting was wholly attributable to the fact of her demotion and that she was no longer a member of the senior management team within the organisation. I find that the Complainant has failed to establish any facts from which it could reasonably be inferred that her exclusion from these meetings was in any way attributable to the fact of her disability.

·       Failure to Provide Assistance: The Complainant claims that she was required to work alone whilst fulfilling the role of Hospitality Manager on a temporary basis during the period from July, 2017 to October, 2017. The Complainant contends that her requests to recruit additional staff during these periods was ignored by the Respondent whereas both persons who were appointed to the role of Hospitality Manager were allowed to recruit additional staff and assistants. Having regard to the evidence adduced, I find that the Complainant has failed to establish any facts from which it could reasonably be inferred that the manner in which she was treated in relation to the recruitment of additional staff during the periods she temporarily carried out the role of Hospitality Manager was in any way attributable to the fact of her disability. Notwithstanding the foregoing, it is clear that 9 October, 2017 (i.e. the date of appointment of Ms. B to the position of Hospitality Manager) is the latest date upon the alleged act or acts of discrimination in relation to matter could have occurred for the purposes of Section 77(5) of the Acts. Therefore, the alleged act of discrimination in relation to this matter did not occur within the statutory six-month time limit.

Having regard to the foregoing, I find that the Complainant has failed to establish that she was subjected to any act or acts of discriminatory treatment contrary to Section 8 of the Acts in relation to her conditions of employment, provision of training and/or promotion within the six-month period immediately prior to the referral of the instant complaint.

Having regard to my findings above, I am satisfied that a number of the alleged acts of discriminatory treatment contrary to Section 8 of the Acts occurred within the twelve-month period prior to the referral of the complaint. Therefore, I must also consider the Complainant’s application for an extension of the time limit in accordance with the provisions of Section 77(5)(b) of the Acts. The provisions within Section 77(5)(b) of the Acts allow for the extension of the time limit from six-months to twelve months in circumstances where the Complainant can demonstrate that there was “reasonable cause” which prevented her from referring the complaint within the prescribed time limits.

The established test for deciding if an extension should be granted for reasonable cause shown is that enunciated by the Labour Court in the case of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338. The Labour Court set out the test in the following terms: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

The reasons put forward by the Complainant to excuse the delay in support of her application for an extension of time relate to a claim that she was medically unfit to attend to her affairs during the material period in question. The Complainant submits that she was experiencing severe depression and anxiety arising from the circumstances surrounding the termination of her employment which adversely impacted her ability to attend to her affairs in relation to the instant complaint. The Complainant accepts that she did instruct her solicitors to correspond with her employer on 31 January, 2018 but the purpose and tenor of that correspondence was clearly aimed at bringing about a resolution of the workplace issues and ensuring the preservation of her job.

It is a matter for the Complainant to establish that there is reasonable cause for the delay. It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay. The Complainant has essentially relied upon the fact of her poor medical condition to explain the reason for the delay in submitting the within complaint under the Acts. However, I have taken account of the fact that the Complainant was in a position to instruct her solicitors on related matters during the relevant period and that a number of letters were issued to the Respondent. I am satisfied that the Complainant has not provided a satisfactory explanation as to the circumstances which allowed her to instruct her solicitors on those matters but prevented her from instituting proceedings in respect of this complaint. In the circumstances, I find that I have not been presented with any reasons from which I could reasonably conclude that the Complainant was impaired due to a medical condition in referring this claim within the statutory time limit.

Having regard to foregoing, I find that the Complainant has neither explained the delay in referring her claim nor has she put forward a justifiable basis upon which an extension of time could be granted in this case. Therefore, I find that the Complainant has failed to comply with the relevant time limits provided for in Section 77(5) of the Acts.

On the basis of my findings that the events occurring within the cognisable period do not constitute individual acts or a continuum of discrimination, I therefore do not have jurisdiction to consider the complaints made by the Complainant relating to events outside the six-month period set out in the Acts for the making of a complaint of discrimination. Accordingly, I do not have jurisdiction to inquire into any of the alleged incidents of discrimination that occurred prior to the cognisable period relevant to this complaint.

Provision of Reasonable Accommodation

The next element of the complaint that I must consider relates to the Complainant’s claim that the Respondent failed to provide her with reasonable accommodation as a person with a disability contrary to its obligations under Section 16 of the Acts.

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 his/her duties.

The Complainant contends that the Respondent’s failure to provide her with reasonable accommodation arose in relation to the denial of access to her disabled parking space in the carpark during the period that the refurbishment works were being carried out on the premises during the Summer of 2017. The Complainant also contends that she experienced persistent difficulties in relation to the access and egress from her office as a result of the continuous placement of obstacles in her way.   The Complainant contends that her office was increasingly being used to store items and that the new Duty Manager’s desk was also placed in her office in December, 2017 despite her protestations in relation to the difficulties that she was already encountering in manoeuvring around the office. The Complainant claims that the situation became intolerable in the period leading up to Christmas 2017 and that she had a constant battle in gaining access to her office which continued up to the time when she went absent on sick leave on 3 January, 2018.

The Respondent disputes the claim that it failed to provide the Complainant with reasonable accommodation contrary to its obligations under Section 16 of the Acts. The Respondent contends that there were a number of measures put in place in the workplace to accommodate the Complainant’s disability including the allocation to her of a car parking space, wheelchair access within the workplace and an upgrading of the wheelchair accessible toilets. The Respondent submits that the Complainant did not raise any issue or complaint in relation to the alleged failure to provide reasonable accommodation during the period of her employment.

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”.

In this judgement MacMenamin J. has also 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. It was held at paragraph 105 of this judgement that: “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, it was 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.

The Complainant adduced compelling evidence in relation to the difficulties that she experienced during the latter period of her employment in accessing her office workspace as a result of the constant imposition of obstacles in her pathway. The Complainant adduced evidence that her office was increasingly used to store items and that the situation was significantly compounded when the newly appointed Duty Manager’s desk was also placed in an already over-crowded office space in December, 2017. I accept the Complainant’s evidence that it became increasingly difficult for her to obtain access and egress from her office and that she raised concerns with the Hospitality Manager, Ms. B, in relation to this matter but no action was taken to resolve the situation. I have also taken note of the very credible evidence adduced by the Respondent’s former Receptionist, Ms. D, which fully corroborates the Complainant’s evidence regarding the difficulties that she experienced in relation to this matter.

Having regard to the foregoing, I am satisfied that the Respondent failed to engage in any process of consultation with the Complainant in relation to the placement or storage of the additional items in her office which ultimately resulted in the blockage of access to her workplace during the material period in question. It is clear that the Respondent acted without any regard or due consideration for the Complainant’s specific needs and requirements as a wheelchair user in relation to this matter. The Respondent clearly had a duty in accordance with its obligations under Section 16 of the Acts to ensure that measures were put in place to enable the Complainant, as a wheelchair user, to have unimpeded access to her workplace. It is clear from the evidence adduced that the Respondent was fully aware of the difficulties the Complainant was experiencing in relation to the access of her workplace, but it failed to take appropriate measures to address the situation. I am satisfied that the difficulties experienced by the Complainant in relation to this matter was the source of considerable stress and anxiety which was further exacerbated by the overall deterioration in her employment relationship with the Respondent which was unfolding at that juncture arising from her diminished status within the organisation following her demotion. 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 in relation to this matter.

I am satisfied that the difficulties which the Complainant experienced in relation to this matter persisted right up to the date that she went absent from work on sick leave in January, 2018. Accordingly, I find that the acts which resulted in the contravention of the provisions of Section 16(3) occurred within the cognisable period of the complaint as required by Section 77(5)(a) of the Acts.

I have also considered the Complainant’s claim that the Respondent failed to provide reasonable accommodation in relation to the denial of access to her parking space in the carpark during the period that the refurbishment works. On balance, I have found the Respondent’s evidence on this matter to be more compelling and I accept that the Respondent attempted to put appropriate measures in place to accommodate the Complainant with a parking space for the duration of the refurbishment works. Therefore, I find that the Respondent did not contravene the provisions of Section 16 of the Acts in relation to this matter.

Having regard to the foregoing, I find that the Complainant was discriminated against by the Respondent in respect of a failure to provide her with reasonable accommodation for her disability contrary to Section 16 of the Acts.

Claim in relation to Equal Remuneration

The final element of the complaint that I must decide relates to the claim that the Complainant was subjected to discrimination on the grounds of her disability in relation to her remuneration contrary to Section 29(1) of the Acts.

The provisions of Section 77(5)(c) of the Acts provide that the requirements in relation to the statutory time limits for the referral of a complaint under the Acts do not apply in relation to a claim of discrimination in relation to remuneration. Therefore, I am satisfied that I have jurisdiction to investigate this element of the Complainant’s claim.

The Complainant claims that the other newly appointed members of the management team received a more favourable remuneration package than her even though they all performed “like work” within the meaning of Section 7 of the Employment Equality Acts. The Complainant claims that the difference in pay was related to her disability.

The Complainant has named four comparators, namely the Facilities Manager, the Sales/Marketing Manager, Curator and the Finance/HR Manager for the purpose of her claim for equal remuneration. The Complainant contends that the other managers were given bonuses and the potential for pension provision as part of their contractual arrangements whereas she was not afforded any such benefits as part of her remuneration package. The Complainant further submits that the fact that her income may have matched or exceeded in global terms that of the other managers reflects the length of service and does not legitimise the less favourable treatment in this respect.

The Respondent disputes the claim that the Complainant was subjected to discrimination on the grounds of disability in relation to her remuneration. The Respondent did not dispute that the Complainant performed “like work” within the meaning of Section 7 of the Act with the named comparators. The Respondent accepts that three of the four named comparators were provided with a bonus arrangement as part of their contractual arrangements. The Respondent adduced evidence that the overall value of the remuneration package paid to these comparators (including the bonus) was less than that of the Complainant’s annual salary. The Respondent contends that the other named comparator (i.e. the Curator) was not paid a bonus and that she was paid less than the Complainant. The Respondent disputes that there was provision for pension arrangements in the contracts of any of the named comparators.

Having regard to the evidence adduced, I have found the Respondent’s evidence on this matter to be more compelling and I am satisfied that the named comparators were not in receipt of a more favourable remuneration package than the Complainant. I accept the Respondent’s evidence that the named comparators were not in receipt of more favourable arrangements in relation to the provision of pension arrangements. Furthermore, I am satisfied that any differential treatment in terms of the inclusion of bonus arrangements in the remuneration packages of the named comparators was attributable purely to economic and commercial factors which arose in the context of the negotiation of their individual contracts of employment. In the circumstances, I find that the Respondent has demonstrated to my satisfaction that the differential treatment in respect of the bonus arrangements between the Complainant and the named comparators was based on considerations which were wholly unconnected to the Complainant's disability. In this regard, it is clear from the provisions of Section 29(5) of the Acts that an employer is not precluded from paying different rates of remuneration once the differential treatment is genuinely attributable to grounds other than her disability.

Accordingly, I find that the Complainant was not subjected to discrimination on the grounds of disability contrary to Section 29(1) of the Act in relation to her remuneration.

CA-00020001-001 – Complaint under the Unfair Dismissals Act, 1997

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts. Accordingly, I find that the complaint is well founded.

I find that the appropriate redress in all the circumstances of the present case is compensation, and in considering this matter, I have taken account of the fact that the stated preferred redress of both parties is compensation.

Section 7(1)(c) of the Act defines compensation as: “… payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks’ remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations …) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.”.

Section 7(2) of the Acts provides: -

“(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid….”

Section 7(3) of the Unfair Dismissals Act 1977 provides that future loss may be taken into account as follows: “financial loss, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to 1973, or in relation to Superannuation”.

Having regard to the above provisions of Section 7 of the Act, I am satisfied that financial loss can consist of a) actual loss i.e. loss of net income between the date of the dismissal and the hearing or decision, b) estimated future loss of income and c) pension losses. Such loss can be explicitly claimed or inferred from the evidence heard. The compensation for total loss under these headings is of course subject to the cap of 104 weeks remuneration.

I have also taken into account, as I am required to do by Section 7(2)(c) of the Acts, the extent to which the Complainant has taken measures to mitigate her loss. There was a dispute between the parties as to whether the Complainant has been in a position to try and mitigate her loss following her dismissal. The Respondent contends that the Complainant has not been available for work due to ill-health following her dismissal and therefore, has not been in a position to mitigate her loss. The Complainant submits that that her mental health and wellbeing has been severely impacted as a result of her treatment by the Respondent arising from the circumstances surrounding the termination of her employment which has led to her being prescribed anti-depressant medication. The Complainant submits that she has not been medically fit to seek alternative employment during the period following the termination of her employment to the date of hearing and that the conduct of the Respondent which led to her constructive dismissal also led to her illness. The Complainant adduced evidence that her recovery is progressing and that she hopes to be in a position to commence the process of obtaining alternative employment in the near future.

In the case of Allen -v- Independent Newspapers [2002] ELR 84 the EAT held that it was “satisfied that her [the claimant’s] illness is attributable wholly to the factors which led her to resign her employment and claim constructive dismissal. Her illness has led to her financial loss. Having regard to the series of findings made by this Tribunal it follows that it must hold that the claimant’s financial loss is attributable to the conduct of the respondent.”

The Complainant submitted a medical report from her General Practitioner dated 17 September, 2018 which supports her contention that her ill-health was largely attributable to the stress and anxiety arising from the circumstances which led her to resign from her employment. I note that this medical report states that the Complainant’s condition had improved significantly since January, 2018 and that: “It is my guarded opinion that overall recovery will occur”. Therefore, having regard to the findings which I have already made as to the factors that led the Complainant to resign her employment with the Respondent and on the basis of the medical evidence submitted, I am satisfied that the Complainant’s medical condition was caused by the circumstances which led to her constructive dismissal. In the circumstances, I find that the Complainant’s illness was, in effect, caused by events which led to her dismissal and these events caused her financial loss.

The Complainant’s rate of pay was €44,720.00 gross per annum at the time of her dismissal, and therefore, the maximum amount of compensation that she can be awarded under the Act is €89,440.00. Having regard to the foregoing, I deem that an award of €50,000.00 to be the appropriate award of compensation in the circumstances of this case.

CA-00020001-002 – Complaint under the Employment Equality Act, 1998

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Section 82 of the Act. I find that:

(i)      I find that I do not have jurisdiction to investigate the complaints in relation to discrimination on the grounds of disability pursuant to Section 6(2) of the Acts in terms of her conditions of employment, reclassification and grading, provision of training and/or promotion and contrary to Section 8(1) of the Acts.

(ii)    I find that the Respondent subjected the Complainant to discrimination on the grounds of her disability by failing to comply with its obligations to provide her with reasonable accommodation contrary to Section 16 of the Acts. in accordance with my powers under Section 82 of the Acts I order that the Respondent pay to the Complainant the sum of €10,000 for the distress suffered by her and the effects of the discrimination, harassment and discriminatory constructive dismissal on him. 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”. This compensation does not contain any element of remuneration and is therefore not subject to PAYE/PRSI.

(iii)   I find that the Respondent did not discriminate against the Complainant on the grounds of disability contrary to Section 29(1) of the Acts in relation to her remuneration.

Unfair Dismissals Act, 1977 to 2015 – Section 1 – Constructive Dismissal – Demotion - Employment Equality Acts 1998 to 2015 – Discrimination – Disability Ground – Section 8 - Conditions of Employment – Reclassification and Grading of Post – Provision of Training – Promotion – Section 16 – Reasonable Accommodation – Section 29 – Remuneration