ADJ-00026846

Complainant

Respondent

Parties

Beatrice  Fleming

Reddilift Limited

Representatives

Shane MacSweeney. MacSweeney & Company Solicitors

Rory Treanor BL  Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00034473-001

24/12/2019

The Complainant alleged she was directly discriminated by a variety of actions by the Respondent as a result of her disability from two aneurisms and epilepsy. The Respondent denied that it was aware of the Complainants disabilities and alleged that its actions, that the Complainant complains of, were justified and were not discriminatory. The Parties in Equality cases are named unless there are reasonable grounds put forward by the parties not to do so. The Complainant requested the Parties not to be anonymised in the Decision and the Respondent did not object or comment on this request, so the Parties are named in this Decision. The Parties made further submissions of evidence post the Hearing to supply further details not available at the Hearing and address issues arising from the Hearing.

The Complainant lodged complaints with the Workplace Relations Commission pursuant to Section 77 of the Employment Equality Acts 1998 – 2015 (“the Acts”) on December 24th, 2019. The material complaints under the Acts are that the Complainant was:

discriminated against by her employer on the ground of disability; and

discriminated against by her employer on the ground of disability in failing to provide her with reasonable accommodation for her disability.

The Respondent is a private limited company was incorporated in 2016 but was previously in business since 2004 and is involved in the sale, hire, supply and servicing of a range of forklift and power lift machines and further provides driver training on their operation. It operates from a large purpose-built warehouse and has circa 11 employees on site, including three directors, who are active in the business. The three directors are the founders, a married couple, together with their son.

The Complainant is married with 4 grown-up children and her husband is retired and in receipt of a modest non-contributory pension. The Complainant was first employed by the Respondent in February 2013 and (technically at least) remains employed there. Whilst she did not receive a written Contract of Employment at the time she was first employed, she signed a “Statement of Particulars of Employment” on 5th March 2016. Notably, the Respondent claims that a Staff Handbook bearing the date “2017” was introduced on some unstated date – and this has been relied upon (inappropriately, the Complainant maintained) in an effort to discipline her, in circumstances where it was never properly incorporated into her terms and conditions of employment.  The Complainant worked as Office Manager, a role which she enjoyed, primarily dealing with accounts/administration, prior to developing a serious and potentially fatal medical condition. She worked 5 days per week and a total of 32 hours per week in respect of which she received a net salary of €400/ week.  Her job was very important to her, being the primary breadwinner in her household. Her duties involved book-keeping, accounts, invoicing, correspondence, telephony, filing, correspondence, general administration and the like.

Prior to her becoming unwell, she had her own office, which was situated in the work-shop, directly off the main shop floor. She reported primarily to Ms A who is her sister-in-law, albeit she took instruction from all 3 directors. She was never once the subject of criticism or reprimand, prior to the onset of the events described herein. Unfortunately, the Complainant developed an aneurysm in April 2018.  She had first developed symptoms in mid-April, but matters became critical on 28th April 2018, when she was first admitted to UHG. She was thereafter transferred by ambulance and admitted to ICU in Beaumont Hospital on 29th April 2018, where she spent three weeks and thereafter was, transferred to UHG for treatment, where she was confined as an in-patient for a further 3 weeks (approximately). She remains under the care of her Consultant Neurologist and her GP. She was treated sympathetically during the first period of illness and received sick-pay from the Respondent. She returned to work on 17th June 2018. Notwithstanding this, her role (albeit described as "Office Administrator") was advertised in July 2018 and ultimately filled, ostensibly on a permanent basis in October 2018. The Complainant clearly recalls that the duties for the "new" role were identical to the duties attaching to her own role.

The Complainant was unable to provide a copy of this advertisement at the Hearing but provided a copy post the Hearing and circumstances where it was placed by IFAC, the Respondent’s accountants. Her replacement (Ms B) started work in the “new” Office Administrator role in October 2018, albeit she ostensibly (now at least) carries the title of “Financial Controller”. The Complainant unfortunately learned that she had a second aneurysm on 16th October 2018, which she was advised would require surgery.

The Complainant spoke with Ms A and asked to continue to work part-time with the Respondent pending the surgery (which was scheduled for January 2019), but was strongly discouraged by Ms. A who stated that this would present various unenumerated issues for the Respondent, including “insurance” and “health and safety” risks. Whilst she had received sick pay during her earlier 6-week absence (from 7th May 2018 up to her return to work on 17th June 2018), she was advised in November 2018 that sick pay would not be paid for any further period of absence by letter dated 23rd November 2018. The Complainant underwent surgery at Beaumont Hospital in Dublin on 17th January 2019, under the care of a Consultant Neurosurgeon, which thankfully was successful. Following the surgery, she requested a return to work, initially on a part-time basis, but was repeatedly and actively discouraged and/or prevented from doing so.  She provided a certificate of her Neurosurgeon to the Respondent dated 15th March 2019 confirming she was “fully fit to return to work”.  However, the Complainant submitted a further certificate from her GP, confirming her fitness to return to work on 13th May 2019.  However, despite this, her return was not facilitated and she was continuously fobbed off by Ms. A. 

The Complainants father, telephoned Mr C (A Director of the Company) in early May 2019, to establish the position in relation to the Complainant resumption of work.  He committed to coming back to him with an update, but ultimately did not do so and instead, the Complainant received a letter from Mr. A dated 7th May 2019 ostensibly addressed “To all Staff”, stating:

“I wish to Inform you that Ms. B has taken up the position of Director of HR at (the Respondent). Going forward please direct all queries in correspondence relating to your employment to reach her.”

The Complainant then received a letter of Ms. A seeking to look behind the certification of her consultant neurosurgeon and her GP dated 16th May 2019, requesting that she consent to her liaising with her “neurologists, in Beaumont and UHG and also your GP”, for a medical report, notwithstanding the provision of the aforesaid certification.  Ostensibly, the request was couched in language which implied a desire to accommodate the Complainant, but in truth, it was apparent that her return to work was being inhibited, in the hope that a ground (or grounds) for refusing to accommodate her return might be identified. The Complainant elected to withhold her consent, in such circumstances and instead, submitted a further certificate of another GP dated 23rd May 2019 noting that 3 declarations of fitness to resume work had been provided.  However, a further effort to frustrate her return to work issued in the form of a letter dated 24th May 2019, wherein an “explanation” was sought for her absence from work and it was asserted that she had “failed to explain the reasons for her absence”.  She was then informed that in the absence of medical certificates, she (Ms. A) would “have no alternative but to conclude that you are absent without leave”.  This is despite the fact that by letter of 16th May 2019, she made several references to the Complainant medical condition and expressly stated that she would not allow her to return to work, pending receipt of a medical report from her own medical team, confirming her fitness.

By letter dated 29th May 2019, the Complainant acknowledged receipt of the aforesaid letter and expressed understandable confusion regarding the Respondent’s position.  She noted that she had provided certification of her fitness to return to work, having requested (from Mr. D a Director) an initial part-time return to work and agreement on an actual date for that return.  She noted that she did not wish to consent to the request for a medical report from her own doctors and she expressed bemusement/confusion at being deemed “absent without authorisation” in the context of her not being permitted to return to work, despite her request.

Unfortunately, the Complainant suffered a subsequent seizure on 30th May 2019, which was stress-related (not least owing to her straitened financial situation) and she spent a week in hospital in UHG, in consequence.

The Complainant received a further letter from Ms. A on 30th May 2019, again seeking to look behind the medical certification provided and making unspecific/generalised references to the Respondent’s “duty of care” and possible “health and safety risks to [their] employees”.  However, she confirmed that the Respondent would then allow a return to work from 6th June 2019, on 3 consecutive days per week from 8:30 to 4:30, with the days to vary per the needs of the business.

Notwithstanding her hospitalisation, the Complainant responded by letter dated 5th June 2019, requesting that her start/finish times be moved forward by 30 minutes and that she be advised of the notice she would receive of her weekly working pattern and further suggesting a return to work on 10th June 2019. In response, she received a letter dated 6th June 2019, which acceded to her request, but included what was termed a “Contract Amendments Letter” [sic.], which in no way reflected the Complainant  request to be eased back to work on a part-time basis initially, before being moved back to her normal role, but which subject to a minor amendment, the Complainant  agreed to sign in any event. The Complainant ultimately presented to work (as agreed) on 10th June 2019 but was met with a very frosty reception from Ms A who told her to go home and to return on 12th June 2019 (which she duly did), when she would be permitted to commence work. Following her return to work on 12th June 2019, further obstacles were put in her way and she was made to feel very unwelcome and unwanted.  This was the continuation of a clear trend that had emerged during the second half of 2018. In the first instance, immediately upon her return, she was presented with a form to sign entitled “Employee Repayment of Wages Agreement” pursuant to which the Respondent (for the very first time), demanded that she sign a document providing that the monies paid to her as wages whilst she was absent on certified sick leave (over 12 months earlier), were an “overpayment” and providing that she would repay same.  This was furnished to her by Ms B, who had by then to all material intents, replaced her within the Respondent’s business. She was not permitted to return to her original (pre-aneurysm) office and was stripped of the overwhelming majority of her pre-aneurysm duties and responsibilities.  Instead of undertaking her usual range of duties (which involved a leadership role in accounts/book-keeping/administration), she was assigned very menial work by Ms B, primarily (paper to electronic) data entry and stock-taking. Moreover, Ms B was assigned the Complainants former office (in the main building), whilst the Complainant was then accommodated in a shipping/transport container, converted into an office and located in the yard (that has since been disposed of). The shipping/transport container was very poorly equipped. She had to work without a telephone or internet connection (both of which she had enjoyed prior to developing her condition).   The shipping/ transport container was exceptionally noisy, being located adjacent to where the heavier work was undertaken within the yard.  Moreover, it was stuffy and hot making it very uncomfortable to work in. She was very (and visibly) unhappy about her treatment and requested earmuffs, due to the high noise levels in the container. Ms. A took grave offence to the Complainant raising concerns about the noise and ultimately, accused her of “inappropriate behaviour”, principally related to the latter’s alleged “tone”.  Ms. A’s note of her conversation with the Complainant on 27th June 2019 were submitted. This was escalated into a patently contrived disciplinary process, in which the Complainant was alleged to be guilty of:

failing to submit sickness certificates during period dating back (in some instances) some 15 months or more

 alleging breach of a confidentiality policy (which the Complainant had never previously seen), by reason of the removal of her work diary (briefly), whilst she was on sick leave (with the knowledge/consent of Ms B and two other directors, and

alleged inappropriate behaviour, when she apparently adopted the alleged inappropriate tone with Ms. A, when she complained about the noise in her "new" (and inauspicious) office environment, as noted above.

It is worth noting that the charges advanced were premised on a “Staff Handbook”, ostensibly dated 2017, which had never previously been provided to the Complainant and which she believes was most likely created for the purpose of advancing the disciplinary charges against her.  It was first presented to her at the time she was first subjected to disciplinary action in July 2019 and to that extent, it is the Complainant submission that it cannot properly be considered to form part of her overall contract of employment with the Respondent.  The introduction of disciplinary charges relating to the alleged failure to submit sickness certificates, when there plainly was no credible doubt about the fact that the Complainant was fighting for her life during much of the subject period is clear evidence of bad faith.  Moreover, the fact that this apparent breach related to a policy which she had never been made aware of evinces a clear intention on the Respondent’s behalf to unfairly discipline her. Moreover, alleging something as serious as a “breach of confidentiality” for the temporary removal of a work diary (in order to temporarily retrieve (over a period of just 1 hour)  some personal information – merely a list of telephone numbers for friends, colleagues and family – with the consent and knowledge or her replacement and two of the directors, smacks of the Respondent desperately scouring its records for any form of charge to put to the Complainant , be it good or bad.  For the record, the rationale for calling into work in order to retrieve the list of telephone numbers arises from the fact that the Complainant has never owned a mobile telephone and consequently, does not have those numbers stored in her phone.  This is before one considers the fact that the Complainant had never been made aware of any such policy.

The Complainant was subsequently required to attend a disciplinary hearing on 5th July 2019 (which was chaired by a Staff member of Graphite HRM, a sister organisation of Peninsula (who represent the Respondent in these proceedings) and then disciplined and issued with a written warning on 23rd July 2019, which she appealed (albeit that appeal has not yet been heard). However, she was (also) subsequently issued with a request to attend a so-called “welfare meeting” by letter dated 25th July 2019, referencing unspecified “concerns brought to our attention” and again referencing generic concerns for the Complainant  and the firm’s “duty of care as an employer to look after the health and wellbeing of our employees”, which the Complainant  believes was a further ruse, issued in bad faith, with a view to challenging her fitness/capacity to work. The letter again sought to look behind the clear medical certification provided and to discuss in detail her medication, the effects of the medication, her “recovery period” and “constraints” – despite the fact that the only accommodation which the Complainant ever requested was a short-lived temporary reduction of her hours to part-time, with minor modification of start/finish times.

Thereafter, by letter dated 30th July 2019, the Complainant was suspended on full pay, pending an investigation into various (but entirely unspecified) matters. The Complainant has not worked since her suspension on 30th July 2019.  By letter dated 31st July 2019, she raised certain legitimate queries and subsequently, submitted a certificate from her GP, dated 12th August 2019, confirming her inability to work due to “work related stress”.

By letter dated 14th August 2019, Ms. A terminated the Complainant pay (owing to her certified absence) and made other references to the grounds of her appeal concerning the disciplinary process referenced above, which are not immediately relevant to the issues with which this forum is now concerned).

For the sake of completeness, the Complainant included some further follow-up correspondence received from the Respondent in the period up to and including 4th February 2020, ostensibly seeking a further “welfare” meeting and further (again) seeking access to the Complainant medical records and/or a report from her treating consultant. The Respondent has not made (nor attempted to make) any contact with the Complainant in the period from February 2020 to the present time.

It was the Complainants case that owing to her condition, the Respondent does not/did not wish that she return to work and in consequence, it took certain actions aimed at discouraging or preventing her from returning and/or from remaining in its employment.

It has directly and transparently discriminated against her by reason of her condition/disability and failed to provide any reasonable accommodation to her, to ease her transition back to work.  It has actively engaged in a form of gaslighting against the Complainant, of the most egregious kind. On a practical level, she has been provided with less favourable working conditions and less satisfying/responsible work. She has been subjected to a plethora of very pedantic and transparently contrived employment/disciplinary processes and has belatedly and inappropriately been disciplined in a callous and unsympathetic manner. Sick pay which (she acknowledges) had been sympathetically (if unconditionally paid) during the initial 6 week acute phase of her condition in early 2018 (when her prognosis was quite bleak), has been incorrectly categorised as an “overpayment” and on her return to work in June 2019, a demand was issued for its full repayment, which in the Complainant  view, was intended as leverage to try and force her out of the workplace.  She speculates that the Respondent might have waived its repayment claim, if she agreed to depart.

Given her age and medical condition/disability and her relative geographical isolation, securing alternative employment would be very challenging.  Whilst she remains (technically) in the Respondent’s employment, her suspension is ongoing and as such, the discrimination is actively continuing.  She faces the prospect of being immediately subjected to a trumped-up disciplinary process on her return to work.  She continues to submit medical certificates, confirming her inability to work as a result of “workplace related stress” caused by the Respondent’s unlawful actions.

The Complainant is not in receipt of ongoing pay and has not received any payment since 14th August 2019.

Section 85 of the 1998 Act sets out the burden of proof which applies in a claim of discrimination. It provides that where facts are established by or on behalf of the Complainant “from which it may be presumed that there has been discrimination in relation to him or her”, it is for the employer to prove the contrary.  Therefore, once a complainant establishes prima facie evidence of discrimination, the burden of proof shifts to the Respondent (at first instance).

The difficulty in proving discrimination was noted by the Labour Court in the case of Massinde Ntoko v. Citybank[1], where it found that:

“A person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging complainants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof.”

The Labour Court elaborated further on the interpretation of section 85A in ArtursValpeters v. Melbury Developments Limited[2] where it stated that 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.”  The Court went on to say that: “While those facts will vary from case to and there is no closed category of facts which can be relied upon, it is now accepted that 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”.

The Court in the Valpeters case was clear that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”. It was submitted the preponderance evidence provided by the Complainant squarely establishes (at a minimum) a prima facie case of disability related discrimination, which ought to shift the burden of proof in the present instance.

Section 2 of the 1998 Act defines “disability” as including “the malfunction, malformation or disfigurement of a part of a person's body”.   The Complaints Neurologist confirms that the Complainant “Suffered a brain haemorrhage in April 2018.  This was a subarachnoid type haemorrhage arising from a ruptured aneurysm on middle cerebral artery.  This was coiled at the time.  In January 2019 she had elective coiling of another unruptured aneurysm completed successfully.  As a result of her brain haemorrhage (The Complainant] has developed secondary epilepsy and is on long term medication for same.  She remains under the care of her consultant neurologist.”

It was submitted that the foregoing describes what was undeniably a serious malfunction of the brain and that it, combined with the secondary epilepsy which the Complainant  has developed, constitutes an ongoing (and potentially life threatening) condition, requiring life-long monitoring, review and care and cannot be equated with mere “illness” or “sickness”, even if many aneurysm / brain haemorrhage survivors and/or those with epilepsy go on to lead largely normal lives, with the benefit of appropriate care and treatment.

A more detailed (and lengthy) summary of the treatment which the Complainant underwent in the period November 2018 to May 2019 is contained in a letter from her Consultant Neurologist to the Complainants GP dated 2nd May 2019.

Section 6(1) of the 1998 Act defines “discrimination” for the purposes of the Act as follows:

            “6.       (1)    For the purposes of this Act and without prejudice to its provisions

relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) 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) (in this Act referred to as the ‘discriminatory grounds’)...”

Section 6(2) of the 1998 Act goes on to define “discrimination” on grounds of disability as follows:

“6. (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”)”

In A Computer Component Company v A Worker [2002] E.L.R. 124 (LC), a complainant who had very satisfactorily completed a period of employment was offered a permanent position and completed an application form and declared that she had epilepsy.  The complainant felt that she was fully capable of undertaking her duties but following a company medical (which confirmed her capacity to undertake her present role and to do all tasks bar operating heavy machinery), the offer of a permanent role was withdrawn and her temporary employment was terminated.  The company doctor had also suggested obtaining a report from a Neurologist. 

The defence offered by the company was that it requires all employees to be fully fit and capable of undertaking all tasks associated with the production function, to include the operation of heavy machinery.  The Labour Court found that operation of heavy machinery constituted a minor proportion of the overall production work and as such, noted that not all employees were engaged thereon.  It found that arrangements could have been put in place to whereby the complainant would not have to use the machinery and that the decision to dismiss was taken precipitously and that no safety assessment which could have identified the extent to which the working environment proved a danger to the complainant was made. It is noted that in the present case, the discrimination is more overt, in that there is no suggestion that the Complainant  is unable to undertake the full range of her pre-disability duties – rather, she has been the subject of less favourable treatment, precisely because of the fact that she suffers from her disability and the Respondent has determined, for reasons best known to it, that it would prefer to continue without her involvement.

The Labour Court has repeatedly stressed that before coming to the view that an employee is not in a position to carry out his/her full duties, the employer would “normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity”-Humphreys v Westwood Fitness Club [2004] E.L.R. 296, 300. In its determination, the Labour Court stated that the respondent had not shown to the satisfaction of the Court that the complainant was not fully capable of continuing to perform the duties for which she was employed within the meaning of Section 16(3) of the Act and she was awarded compensation.  The decision was upheld on appeal to the Circuit Court.

Section 16 provides that a person with a disability is to be considered fully competent and capable to undertake the duties attached to a job, if the person could do the duties with the assistance of special treatment or facilities.

The recent Supreme Court determination in the long-running Nano Nagle School v Marie Daly case [2019] IESC 63, which had previously been the subject of earlier determinations in the Labour Court, the High Court and the Court of Appeal, is useful in providing clarity on certain key principles that apply in the area of disability discrimination law.  The key points arising in that case are:

The Supreme Court has broadened the scope of an employer’s reasonable accommodation obligation by stating that there is no reason why providing reasonable accommodation should not involve a redistribution of what might be termed core “duties” as well as non-core “tasks”. The Supreme Court has made it clear that an employer must consider potential actions concerning both duties and tasks in discharging its reasonable accommodation obligations. This completely overturns the Court of Appeal’s approach to this issue, which in essence held that an employer was only required to consider a distribution of non-core “tasks” and did not need to consider redistributing or eliminating any “core” duties of an employee’s role.

Notwithstanding that significant change, much of the reasonable accommodation test remains the same, being one that is easy to state but difficult to apply. An employer is under a mandatory duty to take all “appropriate measures” (irrespective of whether that involves core “duties” or non-core “tasks”) unless any measure would constitute a “disproportionate burden” for the employer. The employer must demonstrate that they have fully considered the reasonable accommodation question. The Supreme Court in particular noted that the test “is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee, as this would almost inevitably impose a disproportionate burden on an employer”.

The Supreme Court confirmed that an employer has no binding legal obligation to consult with an employee or to allow them to participate in the process of assessing what is or is not reasonable accommodation. Nonetheless, the Supreme Court commented that “a wise employer will provide meaningful participation in vindication of his or her duty under the Act”, in particular in light of the importance of fair procedures under Irish employment law.

The Supreme Court confirmed that an employer is under a mandatory duty to explore the possibility of obtaining public funding or other assistance when considering all reasonable accommodation which might be put in place. The Supreme Court acknowledged that if an employee would not be able to fully undertake the duties of his role, even on the provision of all reasonable accommodation, then there is no discrimination at issue.

It was submitted that the Complainant medical condition is sufficiently serious to constitute a disability within the meaning ascribed thereto at Section 2(1)(c) of the 1998 Act and in particular, that her injuries are such that she has suffered a significant and ongoing “malfunction” of her brain. 

It cannot credibly be argued that her condition constitutes “sickness” or “illness” – it results from a ruptured aneurysm of a cerebral artery, leading to secondary epilepsy, which will require ongoing lifelong management, having necessitated initial emergency hospitalisation and a surgical coiling procedure, followed by subsequent elective surgery for further coiling, as noted earlier. It was submitted that the facts as outlined more than meet the test of “prima facie evidence of discrimination” such that the burden of proof ought therefore to switch.  It is submitted that on even a superficial analysis of the facts, there was a marked change in attitude to and treatment of the Complainant following the development of her condition, leading one inevitably to conclude that the ill-treatment was linked to and primarily inspired by same – and as such prima-facie, by reason of her disability.

In the present case, whilst the Respondent was initially supportive in financial terms (at a time when it was widely believed that the Complainant might die from the aneurysm), there is simply no gainsaying the fact that the Respondent has behaved in a callous and contemptuous manner since the Complainant first sought to return to work.

Despite never once having been subjected to any medical appraisal from an occupational perspective, the Complainant was denied a return to work once requested and this was continuously postponed and or prolonged.  It is obvious that the Respondent did not want the Complainant to return and that having effectively replaced her (with Ms B), entirely by reason of her disability, it then set about making her work life as intolerable and as unbearable as possible, with a view to forcing her out of work.

In practical terms, whilst the Complainant remains “employed” it is difficult to envisage what arrangements might be put in place to facilitate her, in terms of a return to work.

The Respondent’s conduct amounts to direct discrimination on the disability ground, within the meaning of Section 8 of the 1998 Act, in as much as the Complainant was discriminated against in terms of access to employment, conditions of employment and in terms of the classification of her post.

Separately, the Complainant was directly discriminated against by the Respondent, within the meaning of Section 6 of the 1998 Act, by seeking to force her out of her employment (and to thereby attempt to constructively dismiss her), as a direct consequence of her disability.

Moreover, the Respondent failed to afford the Complainant any reasonable accommodation and in particular:

Failed to properly ascertain the nature, extent and/or likely duration of her illness and consequential incapacity (if any) in a timely manner or at all;

Failed to allow her to return to work in a timely manner or at all, without having established that there was any reasonable basis for believing that she could not carry out her full range of pre-disability duties;

Failed to allow her any or any reasonable opportunity to ascertain or confirm her capacity for her pre-employment work;

Ignored medical evidence relevant to her capacity to resume work;

Failed to secure its own medical evidence in relation to the nature, extent and/or likely duration of her illness/incapacity;

Failed to establish the extent to which measures could be implemented to ease the Complainant back into the workplace;

Failed to consider the employment or engagement of temporary staff to cover for the Complainant, whilst she was recuperating – and instead, actively sought and recruited a full-time replacement for her, rendering her return to work unwelcome for the Respondent;

Actively implemented measures which inhibited and prevented the Complainant from working and which rendered her work-life intolerable, including attempting to coerce her financially into having to depart her workplace and presenting patently trumped-up disciplinary charges against her, in bad faith.

Suspending her from her employment in circumstances that were entirely unwarranted, not least by reference to the principles enunciated by Mr. Justice Noonan in the High Court case of O’Reilly v Bank of Ireland, [2015] IEHC 241.

It was submitted that there can be no justification for the Respondent’s heartless treatment of the Complainant in the present case.  Instead of facilitating her in her sincere efforts to resume work and to earn a livelihood in the manner she did without demur or discipline in the period prior to April 2018, it penalised her for seeking to resume her pre-disability life.

The evidence was that she was fully capable of resuming her full schedule of pre-employment work by June 2018 and that despite this, her duties were taken from her and provided to a new and (ostensibly) younger and healthier replacement.

The Complainant gave evidence at the Hearing and the Respondent declined the opportunity to cross examine the Complainant. As the Parties accepted that a disability existed they agreed the need for the Complainants GP (who was on standby) was not required.

The WRC’s general practice is to anonymise proceedings, save in equality claims, where it identifies the parties, at the election of the complainant. It is the Complainant preference and she hereby elects, that the Determination of the WRC in this instance not be anonymised.

The Complainant very much enjoyed her job with the Respondent.  She was unfortunate to suffer an aneurysm, with long term implications for her health, working and domestic life.

The Respondent had a legal obligation to make a more sincere and purposive effort to accommodate her seamless return to work.  However, in contrast to what it ought to have done, it engaged in a campaign of alienation and oppression, designed to force the Complainant to terminate her employment.

It was submitted that the appropriate course of action would have been to temporarily replace the Complainant, until such time as it had been provided with medical evidence (as occurred in this instance) confirming that she was fit to resume her duties fully.  In the event, it sought to look behind the medical certification furnished, despite never having made any arrangements to conduct an independent medical evaluation in relation to the Complainant capacity for office based administrative work.  It elected to replace her permanently, at a time when it was obvious that she intended to remain in her work.

It was submitted that for the foregoing reasons (to be supplemented by evidence at the hearing), the Complainant has been discriminated against on the grounds of disability.

The ECJ in Von Colson & Kamann v Land Nordrhein-Westfalen  ECJ, C-14/83 noted:

“Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive.”

This reasoning has been followed by the Equality Tribunal, the WRC and the Labour Court in numerous cases and it is submitted that this forum should mark its opprobrium for the outrageous treatment of the Complainant with an appropriate award of compensation.

The Complainant is employed as an Office Manager. The Complainant remains in employment. The Respondent is a marketing, seller and supplier of forklift products and services. The Respondent has eleven employees. On 24 December 2019 the Complainant commenced the following claim under the 1977 Employment Equality Act 1998. In particular, the Complainant alleges that she was discriminated against on the grounds of disability. The Complainant alleges that she was dismissed for discriminatory reasons. The Complainant alleges that she was discriminated against in her conditions of employment. The Complainant alleges that she was discriminated against in some other fashion.

The Respondent denies the Complainant ’s claim as alleged or at all.

it was denied in the Respondents submission prior to the Hearing that the Complainant is suffering a disability, but the Respondent accepted the Complainant had a disability at the end of the Hearing.

The Respondents main defence was that it did not discriminate against the Complainant but also was never informed that the Complainant suffered a disability. At all times the Complainant, and the medical evidence tendered by the Complainant to the Respondent showed the Complainant to be in full health and able to perform her duties.

It was further denied that the Complainant was dismissed, as alleged or at all. In particular, it is stated in the Complainant ’s initial claim before the Workplace Relations Commission and in subsequent submissions that the Complainant was, at the time of the claim being commenced, an employee of the Respondent.

The Complainant commenced her role with the Respondent on or about 21 April 2014. This was confirmed in writing by the Complainant on 05 March 2016. On that same date the Complainant confirmed receipt of the Respondent Employee Handbook.

On 19 April 2017 the Complainant provided the Respondent with a declaration of health for the year 2017.

On 28 April 2018 the Complainant sustained a brain aneurism.

Until November 2018 the Respondent did not require the Complainant to provide evidence of sickness and the Complainant was permitted to continue to work as and when the Complainant considered herself able. The Complainant was paid full contractual pay throughout this period.

From November 2018 the Respondent was no longer able to sustain paying the full salary of an absent employee.

The Complainant sustained a second aneurysm which was eventually addressed surgically in January 2019.

There was no further communication from the Complainant until 13 March 2019.

On 13 March 2019 an incident transpired at the premises of the Respondent. Ms. B reduced to writing the events of that day shortly after they occurred. Mr C reduced to writing the events of that day shortly after they occurred. The Complainant was not expected to attend work at this time.

The Complainant remained absent from work without sickness certification.

On 31 March 2019 the Complainant sustained a seizure. This caused the Respondent significant concern regarding the wellbeing of the Complainant and the safety of the Complainant in the workplace.

On 13 May 2019 the Complainant provided a medical certificate from her GP stating that the Complainant is fit to resume work.

On 16 May 2019 Ms. A wrote to the Complainant requesting the consent of the Complainant for the Respondent to contact the Complainant ’s Neurologists and GP. This letter specified that the Respondent was concerned for the Complainant ’s health and fitness for work. The Respondent also specified that the information provided would assist in making any adjustments to assist the Complainant ’s return to work.

On 23 May 2019 a GP confirmed that the Complainant was fit to return to work on a part-time basis with a gradual increase in hours. This was the last medical evidence provided to the Respondent by the Complainant until 12 August 2019.

On 23 May 2019 the Complainant refused her consent to the Respondent being provided with a medical report.

On 24 May 2019 Ms. An attempted to contact the Complainant by telephone but without success.

At 15.00 on 24 May 2019 Ms. A telephoned the Complainant to discuss the Complainant ’s failure to return to work. In particular, it was stated that subsequent to the Complainant tendering a certificate of fitness to return to work on 13 May 2019 the Complainant had not returned to work and had failed entirely to communicate with the Respondent.

Later on, 24 May 2019 Ms. A wrote to the Complainant regarding her absence without leave.

On 29 May 2019 the Complainant wrote to the Respondent in response to the Complainant ’s telephone conversation. The Complainant clarified that she was not in fact absent without leave but rather awaiting communication from the Respondent regarding when she would be returning to work.

On 30 May 2019 Ms. A wrote to the Complainant apologising for the confusion that had arisen regarding the Complainant ’s return to work. This letter confirmed, inter alia, that the Complainant would return to work on a part-time basis from 10 June 2019.

On 06 June 2019 Ms. A wrote to the Complainant regarding an amendment to the Statement of Main Terms. The Complainant subsequently requested that the wording be slightly amended.

On 10 June 2019 Ms. A wrote to the Complainant setting out the amended amendment to the Complainant ’s Statement of Main Terms. The Complainant signed same on 12 June 2019.

On 21 June 2019 Ms. B poke with the Complainant regarding a disparity in the wages paid to the Complainant.

On 24 June 2019 the Complainant entered into an agreement with the Respondent for the repayment of overpaid wages in the sum of €7,400.00. This agreement was not implemented by the Respondent and the Complainant ’s wages were never reduced.

On 26 June 2019 Ms. A spoke with the Complainant regarding her behaviour on 25 June 2019. The events of this meeting were reduced to writing by Ms. A on 27 June 2019.

Ms A informed the Complainant that her behaviour was unacceptable. The Complainant respondent to this   xxxxxxxxxxxxxxCheck

On 03 July 2019 the Ms. A wrote to the Complainant inviting the Complainant to attend a disciplinary hearing on 05 July 2019.

On 23 July 2019 Ms. A wrote to the Complainant communicating the outcome of the disciplinary hearing held on 05 July 2019. The Complainant was issued with a written warning. The Complainant was informed of her right to appeal this decision.

On 25 July 2019 Ms. A wrote to the Complainant inviting the Complainant to an informal welfare meeting on 01 August 2019.

On 25 July 2019 Ms. An alleged to Ms B that the Complainant had engaged in certain conduct towards her that may amount to misconduct. Ms B reduced what transpired at this meeting to writing shortly after the meeting.

On 28 July 2019 the Complainant wrote to Ms. A informing the Respondent that she wished to appeal the decision to issue the Complainant with a written warning, The Complainant stated that her grounds for appeal were as follows:

Ms Ciara McCormack failed to provide the Complainant with identification before the disciplinary hearing;

The Complainant wasn’t given sufficient time to review the staff handbook.

On 30 July 2019 Ms. A wrote to the Complainant acknowledging that the Complainant had appealed the decision of 23 July 2019. Ms. A asked in that correspondence to set out why the Complainant believed the decision was unfair.

On 30 July 2019 Ms. A provided a statement to Ms B regarding the events of 25 July 2019.

On 30 July 2019 Ms B met with the Complainant and suspended the Complainant on full pay. The Complainant was provided with a letter setting out the reason for the suspension and the purpose of the suspension. The events of that meeting were reduced to writing by Ms B shortly after the meeting.

On 31 July 2019 the Complainant wrote to Ms B seeking clarification of certain particulars arising from the suspension of the Complainant.

On 02 August 2019 Ms. A on behalf of the Respondent wrote to the Complainant regarding the Complainant ’s letter of 31 July 2019. The letter confirmed, inter alia:

That the Complainant was suspended on full pay pending investigation. Going forward this matter would be managed by Ms B.

The rescheduling of the informal welfare meeting which the Complainant did not wish to attend.

That the Respondent was awaiting from the Complainant a statement in writing of the grounds upon which she was appealing the written warning issued to the Complainant on 23 July 2019.

On 02 August 2019 Ms B on behalf of the Respondent wrote to the Complainant inviting the Complainant to attend an investigation meeting on 09 August 2019. The Complainant was also provided with documentation in relation to the investigation, a copy of the disciplinary rules and procedures and the terms of reference for the investigation.

On 07 August 2019 Ms. A wrote to the Complainant asking that the Complainant provide grounds for appeal no later than 02 August 2019.

On 08 August 2019 Ms B on behalf of the Respondent wrote to the Complainant after a phone call from Ms B asking the Complainant to confirm certain matters prior to the meeting scheduled for 09 August 2019.

On 09 August 2019 Ms B on behalf of the Respondent wrote to the Complainant requesting that the Complainant attend a rescheduled investigation on 16 August 2019.

The Complainant tendered a medical certificate stating that she is unable to attend work due to work related stress covering the period 12 August 2019 to 19 August 2019.

On 14 August 2019 the Respondent wrote to the Complainant informing the Complainant that as she is now absent on sickness, this sickness supersedes the suspension of the Complainant and accordingly the Complainant would no longer be paid for her absence from work. This correspondence also alerted the Complainant to the availability of the grievance procedures.

The Complainant tendered a medical certificate stating that she is unable to attend work due to work related stress covering the period 19 August 2019 to 30 August 2019.

On 28 August 2019 the Respondent wrote to the Complainant inviting the Complainant to attend an informal welfare meeting on 04 September 2019.

On 02 September 2019 the Complainant wrote to the Respondent informing the Respondent that she was unable to attend the informal welfare meeting due to being on sick leave for work related stress.

The Complainant tendered a medical certificate stating that she is unable to attend work due to work related stress covering the period 02 September 2019 to 16 September 2019.

The Complainant continues to present certificates on a weekly basis certifying her inability to attend work due to work related stress.

The Complainant remains an employee of the Respondent.

The Complainant has brought a single claim pursuant to s.77 Employment Equality Act 1998.

The Respondent denies this claim.

The burden of proof rests with the Complainant to establish prima facie, the following:

That the Complainant suffers a disability;

That the Respondent acted to the detriment of the Complainant;

That the detrimental act was due to the Complainant ’s disability.

It is a matter for the Complainant to prove that the Complainant suffers a disability.

It is denied that the Respondent acted in any way to the detriment of the Complainant, save in that the Respondent engaged in disciplinary action against the Complainant for her conduct and issued a written warning to the Complainant. An appeal of that decision has been lodged by the Complainant and will be determined once the Complainant is fit to return to work.

In the event that it is found that the Respondent did act in some way to the detriment of the Complainant, it is denied that the Respondent did so because the Complainant is suffering a disability. Rather, said disciplinary action arose wholly or substantially as a result of the conduct of the Complainant.

Further, it is essential that the Complainant establish, prima facie, that the Respondent knew or ought to have known that the Complainant was suffering a disability.

In An Employer v. A Worker ADE/19/11 the Labour Court held:

It seems clear to the Court that if an employer is to be expected to offer a reasonable accommodation to an employee, they can only be expected to do so in circumstances where either the disability concerned is self-evident or, alternatively, they are advised of its existence. It would be, in the view of the Court, entirely unreasonable and unrealistic to expect employers to engage in guesswork about whether or not medical complaints brought to their attention required further enquiry by them in order to establish if they indicated the existence of a disability that required them to take appropriate measures within the meaning of the Employment Equality Acts to assist an employee.

In the above case, the Employee was suffering from depression. This came to light in a verbal submission on the part of the Employee at a disciplinary hearing and in written evidence before the appeal of the dismissal of the Employee.

In the instant case, not only was there no evidence of the Complainant ’s suffering a disability, the Complainant presented medical certification that she was fit to return to work on a part-time basis with her hours gradually increasing to her former pattern. When the Respondent sought to satisfy themselves that the Complainant was in fact fit to return to work, the Complainant refused to give the Respondent permission to learn anything further about her diagnosis, prognosis and any reasonable accommodations that might be made in the workplace.

Through the Complainant’s own actions, the Respondent had no option but to accept the Complainant back to the workplace on the basis that she was medically fit as certified by three of the Complainant ’s own medical professionals.

To expect otherwise of the Respondent would be to place an entirely unreasonable and unrealistic burden on the Respondent. The Respondent would have to guess what might be wrong with the Complainant, assume the problem constitutes a disability, and then make speculative adjustments in the hope that the Complainant finds them acceptable.

It might be claimed that the disability of the Complainant is self-evident, or that by other means the Respondent knew of the disability. The Respondent is not competent to diagnose the Complainant and must defer to what expert opinion is available to them. In this case, the only expert opinion the Respondent was permitted to receive is that the Complainant was fit to return to normal duties on a gradual basis. The Respondent acted in accordance with the guidance of three of the Complainant ’s own medical practitioners.

The Complainant returned to work and presented certificates stating that she was fit to return to work.

The Complainant refused permission for the Respondent to have sight of any additional medical reports.

The Respondent was not and, under the circumstances, could not reasonably be expected to have been aware of any disability or illness.

The Respondent exceeded their legal duty in seeking to ascertain further information regarding the health and welfare of their employee. The Complainant obstructed these efforts.

The Complainant now brings a claim alleging she suffers a disability which she chose to keep a secret from the Respondent.

The Complainant now seeks to profit from her wilful misleading of the Respondent as regards the status of her health.

The Complainant ’s claim should be dismissed.

The Respondent offered no witnesses at the Hearing and declined the opportunity to cross examine the Complainant.

The Complaint

The Complainant alleged that the Respondent breached Section 6,2, (g) of the Act by directly discriminating against her due to a Disability.

“6.        (1) For the purposes of this Act and without prejudice to its provisions

relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) 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) (in this Act referred to as the ‘discriminatory grounds’).”

Section 6(2) of the 1998 Act goes on to define “discrimination” on grounds of disability as follows:

“6. (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”)”

Issues Arising

The issues arising in this case are, as follows: -

A; Was the Complainant a person with a disability at the time material to his claim? If that question is answered in the affirmative, then

B; Was the Respondent on notice of the disability? If that question is answered in the affirmative, then

C; Was the Complainant discriminated against on grounds of her disability?

The Law

Section 2 of the Act defines the term “Disability” as follows: -

In every case under the Employment Equality Acts the Adjudicator must first consider the allocation of the burden of proof as between the parties. Where a prima facie case is made out the onus shifts to the Respondent to prove the absence of discrimination. On the established test, it is for the Complainant in the first instance to establish the primary facts upon which the complaint is based. If the primary facts are proved, it is then a matter for the Adjudicator to determine if they are of sufficient significance to raise an inference of discrimination on the grounds relied upon. If having thus established a prima facie case of discrimination, the burden of proof rests with the Respondent to demonstrate that the discrimination was not on the grounds of disability. In order to establish a prima facie case of discrimination, the Complainant must firstly have satisfied the Adjudicator that she had a disability at a time material to her claim and secondly the Complainant must show that the actions of the Respondent raise an inference of Discrimination.  At the conclusion of the Hearing it was accepted by the Respondent that the Complainant had a disability at the material time of the alleged discrimination.  So, the answer to Question A above “Was the Complainant a person with a disability at the time material to his claim?”  is answered in the affirmative. The Complainant outlined several acts of discrimination which she maintained were as a result of her disability and these issues are dealt with under Question C but suffice is to say for now that the result is the Complainant has established she had a disability and has established a prima facie case of discrimination. The detail of the discriminatory acts are dealt with below in the analysis of Question C.

With regard to Question B,  “Was the Respondent on notice of the disability? “in this case the Complainants disability was accepted by all Parties at the Hearing, but the Respondent denied as its core defence, having medical knowledge, as the Complainants employer, of the disability at the time of the alleged discriminatory acts. Prior to the issue of dealing with the question of was the Respondent on notice, the Adjudicator notes that this case involves an inter family dispute. These types of disputes are particularly difficult for the people involved and it is always difficult to understand why they could not have been resolved amicably in the family environment without recourse to a Third Party. It is also obvious the Complainant went through a very difficult period of serious medical issues and she remains under treatment for these conditions. However, despite these issues the Adjudicator must look at the submissions and evidence dispassionately and decide accordingly.

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

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

The applicability of this doctrine in an employment context was confirmed by the High Court of England and Wales in Sayers v Cambridgeshire County Council[2006] EWHC 2029.

In this instant case, the Respondent was adamant that it had never been made aware of the nature of the Complainant’s illness and had never, despite seeking such, had sight of any evidence or certification that she suffers from epilepsy or an aneurism.  The Respondent stated they were never supplied with a medical certificate with details of the disability, that it was provided with Medical Certificates of fitness to work and the Complainant frustrated its investigation into establishing the medical evidence by her refusal to allow the Respondent access to her medical records. It also denied that any of the actions complained of by the Complainant were due to her disability. The Complainants case is that the Respondent has now accepted that the Complainant has a Disability, that the Directors of the Respondent had personal knowledge of the disability due to the family connections, that due to the visits to the hospital by Ms. A she had constructive notice of the disability and the Respondents request for all the Complainants medical records was too general and the Complainant had the right to refuse such request.

The second question then that arises for assessment, and a central plank of the Respondents defense, was that it was not put on notice that the Complainant had a disability. I will leave aside the issue of how the Respondent could accept at the Hearing that the Complainant had a Disability and therefore how did they not know about it at the material time of the Complaint and proceed to deal with the issue of whether the Respondent was on notice of the disability as it is only once this test is passed (or not) does the third question of the possible discrimination acts come into play.

The Complainant claimed to have been diagnosed with brain hemorrhages by a Consultant Neurologist at a hospital.  She also stated she developed epilepsy. She stated that it was impossible for the Respondent who had visited her in hospital not to know she had a disability. The Respondent argues that these visits alone could not be proof that the Respondent was on formal notice of the Complainants disability. No evidence of a medical nature was provided to the Adjudicator to show that the Complainant had given the Respondent a medical certificate stating she had a disability. Therefore, the question becomes should the Respondent have constructive notice of the Complainants disability. In this case both the existence of the putative disability and the extent of the Respondent’s knowledge of that disability are primary facts upon which the Complainant relies in advancing her claim of discrimination. The Respondent denied any actual or constructive knowledge of the disability relied upon at the time of the alleged discriminatory acts. In these circumstances, it is for the Complainant to adduce evidence showing that she was a person with a disability at the time material to his claim. She must also proffer some evidence to establish, in a prima facie way at least, that the Respondent knew or ought to have known that she was such a person.

It is common case in the Submissions and at the Hearing that the Complainant did not give the Respondent a Medical Certificate at any stage which stated she had a disability and therefore was not on formal medical notice of the Complainants disabilities. The question then moves on to whether the Respondents Director(s) had constructive knowledge of the Complainants disability. It was also common case that Ms.  A, a Director of the Respondent and the Complainants Sister in law visited the Complainant in hospital when she suffered the aneurism (and was in a coma for a period of time). The Respondent denied the Complainant full access to return to work pending seeing her full historical medical records, insisted there were insurance and safety concerns regarding the Complainant being at work and stated that any knowledge they had of the Complainants medical condition was due to the family connection and not as Respondent. If the Respondent had concerns about the Complainants medical status which they wanted to investigate further, they had the right to seek a Third-Party Medical assessment of the Complainants medical status regarding their concerns. They choose not to do this and instead seek a very broad unlimited search of the Complainants medical history, for whatever reason. Neither did the Respondent ever seek a medical Certificate clarifying the Complainants medical issues.  The Complainant stated she would have been happy to provide any such certification limited to her current medical conditions. Having considered all these facts I have to conclude that the Respondent was on Constructive notice of the Complainants medical condition.

The facts of this case do not suggest the Respondent “pursued the further investigations which a person with reasonable care and skill would have felt proper to make in the circumstances”; While it was the Respondents right not to enter any direct evidence as a Witness of their knowledge (or lack of same) of the Complainants medical condition this did little to rebuff the Complainants case that the Respondent was on constructive notice of her disability. I am referring to the two periods the Complainant was in hospital for considerable period with hemorrhages issues. One might excuse the Respondent for not being on notice of the epilepsy condition, based on the lack of evidence in that regard. But to say they had no notice of the Complainants hemorrhages medical issues is not reasonable based on the visits to the Hospital by Ms. A, the family connection and the amount of interaction with the Complainant regarding her medical condition. I find the claim put forward that the Respondent was unaware of the Complainants medical situation totally unreasonable taking all the circumstances of the family connections between the Directors of the Respondent Company and the Complainant.  Therefore, the Adjudicator must conclude that the doctrine of constructive notice of a disability does apply and question B; Was the Respondent on notice of the disability? is answered in the affirmative.

The final question then to be answered is Question C; “Was the Complainant discriminated against on grounds of her disability?”. In considering this concept the Adjudicator must examine the reasonableness of both parties in this case. So, the issue then becomes is there sufficient grounds to raise an inference of discrimination and shift the burden of proof from the Complainant to the Respondent. Section 85A of the Act provides that where facts are established from which discrimination can be inferred the onus of proving the absence of discrimination, on the normal civil standard, rests on the Respondent. In A Worker v A Hotel[2010] 21 E.L.R. 72 this Court held as follows in relation to the application of this provision: -

The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination in Mitchell v Southern Health Board [2001] E.L.R. 201.That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which she bears, her case cannot succeed.

In that case the Court went on to hold: -

The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts (see the determination of this Court in Kieran McCarthy v Cork City Council Labour Court Determination EDA082 (December 16, 2008)).

There is, however, authority for the proposition that the mere coincidence of a protected characteristic on the part of the Complainant (in this case a disability) and the detriment relied upon (in this case discriminatory actions) is insufficient, in and of itself, to shift the probative burden. The High Court so held (per O’Sullivan J) in Mulcahy v Minister for Justice Equality and Law Reform and v Waterford Leader Partnership Limited[2002] ELR 12. A similar approach was adopted by the Court of Appeal for England and Wales in Madarassy v Nomura International plc[2007] IRLR 256. Moreover, as was pointed out by Rimer LJ in Gallop v Newport City Council[2013] EWCA Civ 1583, before an employer can be answerable for disability discrimination against an employee, the employer must have actual or constructive knowledge that the employee was a disabled person. The knowledge need not be of a diagnosed condition or disorder constituting a disability within the statutory meaning but to material facts which could reasonably indicate the existence of such a condition or disorder.

My conclusion to question C is also answered in the affirmative on the following basis. The events after the Complainant sent in her fit for work certificate amount to the cumulative effect of an inference of discrimination arising from a number of individual acts by the Respondent which in the normal course of business life are not generally found unless an Employer has a particular discriminatory reason to take such actions. These actions involve the following;

The Respondent confirmed in correspondence subsequent to the Hearing that they, through an intermediary advertised for an Office Administrator. In effect the Complainants job. I have no issue with the fact the person appointed maybe doing more than the Complainant but also is doing much of what the Complainant did and is compensated accordingly. The evidence put forward by the newly appointed Financial Controller at the Hearing, that she responded to the advertisement through Indeed was not supported by the written submission, subsequent to the Hearing, of the Accounting Firm who placed the advertisement who stated the person appointed as Financial Controller responded to their advertisement for an Office Administrator.

The fact that the Independent Accountant states Ms. B went on to develop the role into a Financial Controller after some time which appears to contradict the letter of Appointment as Financial Controller, therefore leaving open the question as to what was Ms.Bs role/title on appointment.

The Respondent provided no response or logic for moving the Complainant from her office to a Container and taking away her phone and internet access and placing her in a noisy environment.

The Respondent placed unreasonable demands to see the Complainants full medical history and not just those records related to her recent absences or indeed requesting a third-party medical assessment of the Complainants medical condition;

The Respondent showed no cause as to why the Complainants numerous fitness to return to work medical certificates were not readily accepted.

The Respondent, of its own volition, paid sick pay for a period while the Complainant was primarily hospitalized with critical illness. However, the Respondent showed severe bad faith by subsequently attempting to recover the sick pay from the Complainant, which was never requested in the first place by the Complainant as she was in a coma and this can only be categorized as part of a contrived, convoluted and misadvised plan to force the Complainant from employment.

There were numerous other possible discriminatory actions by the Respondent, while of a lesser nature to these above, all amount to the complete the picture of discriminating against the Complainant and attempting to force her from the Respondents employment. I do not feel the necessity to go into these other issues in great detail as the discriminatory actions described above are more than sufficient to answer Question C in the affirmative “Was the Complainant discriminated against on grounds of her disability?. However for the sake of completeness these issues involve a disputed Company Handbook, an alleged false disciplinary charge and contrived disciplinary process, a disputed involvement in a Health and Safety Statement and Staff Handbook in 2016/2017, unsubstantiated, by evidence, insurance and health and safety concerns to inhibit the Complainants return to work even though she was certified fit to do so by Neurologists and her GP, and finally, seeking reasons for her failure to return to work when she was available and fit for work. All of these actions contribute, in some way, to complete the picture of a series of discriminatory acts designed to discourage the Complainant from returning to work, or at minimum staying in work, while her position had been replaced.

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.

On the evidence before me, the Adjudicator is satisfied that the Complainant has established facts to indicate that she was suffering from a disability at any material time to this claim. Furthermore, the Adjudicator accepts that the Respondent had direct or constructive knowledge to indicate that she was suffering from an illness that amounted to such a disability. Finally, the Adjudicator finds that the Respondent discriminated against the Complainant on the grounds of her disability contrary to Section 6.2 (g) of the Act. (CA-00034473-001).

For the reasons set out herein the Adjudicator finds that the Complainant has established facts from which discrimination on the disability ground could be inferred. Accordingly, I find that the Complainant was discriminated against and her Complainant succeeds.

Section 82 (1) sets out the forms of redress under the Act and Section 82 (4) of the Act sets the maximum amount which may be ordered by the Director or the Labour Court by way of compensation under subsection (1)(c) or by that Court under subsection (2)(b), in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, shall be an amount equal to 104 times either—

(a) the amount of that remuneration, determined on a weekly basis, or

(b) where it is greater, the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation in question, and in any other case, shall be £10,000.

With regard to compensation, the Complainant Representative sought maximum compensation for the Complainant, especially in the light that the employment relationship is never likely to be resumed by the desire of either party. This amounts to approximately Forty-One Thousand and Six Hundred Euros.  However, the Complainant remains an employee and this decision has no impact or bearing on that and that is a matter for the parties to resolve and not an issue for the Adjudicator to get involved in., While the Complainant has succeeded in her complaint she has to burden some responsibility in this case regarding the issue of constructive notice in that she made no attempts to provide any specific medical information on her current medical diagnosis to the Respondent when the Respondent was seeking to investigate her condition nor act in a way a  “person with reasonable care and skill would”, Accordingly, I award the Complainant Thirty Seven Thousand, Four Hundred and Forty Euros with the maximum award reduced by ten percent, due to her failure to take any specific counter action to address the Respondents generic historical queries regarding her medical condition with more specific medical data related to her recent disabilities.

Direct Discrimination