Complainant

Respondent

Anonymised Parties

Employee

Personnel Manager

Representatives

Personnel Manager

Act

Complaint Reference No.

Date of Receipt

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

CA-00031471-001

09/10/2019

CA-00031471-001

The complainant was successful at interview. It is accepted that the complainant has a medical disability. Her appointment to the panel was subject to a reference and she requested a reference from her manager. Subsequently she received a reference from her then manager that was unsatisfactory. The complainant’s medical disability means that she suffers from high levels of anxiety. She states that this was shared with her line manager. In the reference among several areas that were detailed as unsatisfactory; the manager stated: ‘On one occasion [she] did not attend an important group meeting, and only came to light when an update from the meeting was requested. The reason given was that she experienced anxiety and had to return home.’ The complainant states that she is being treated differently to someone who has no disability or a different disability as her medical condition and symptoms, that are accepted as arising from her disability, have been used in a reference for the purposes of negatively impacting her placement on a panel. She also argues that reference to her attendance record arising from her disability should not have been detailed in the manager’s reference. She was totally shocked and traumatised by the negative matters detailed in the reference as they ran counter to all the alleged positive feedback she had received up to that point and had never been raised or discussed with her by her line manager.

She raised a grievance and stage 1 of the grievance process concluded while evidence shows the manager did not sit down with the complainant before writing the negative reference; there were mitigating factors for this not happening, such as her long-term absence from work. It was also recommended that another referee could be sought and that any absence issues should be addressed through an appropriate action plan. The complainant was dissatisfied with this outcome.

The reference from her manager was dated the 25th of March 2019. On the 9th of April 2019 the complainant was informed by HR that they received an unsatisfactory reference.

On the 10th of April 2019 the complainant made a data access request for a copy of the reference and received a copy of the reference on the 15th of April 2019 and on receipt believed that she had been discriminated against as defined under the Act, arising from her disability.

The complainant withdrew her complaint concerning alleged discrimination on the ground of family status.

The complainant; however, does maintain that she suffered discrimination arising from her disability and was treated less favourably because of it. The reference to anxiety as a reason for not attending a meeting is a clear example of such discrimination. This must be viewed in the context of the complainant disclosing to her manager that she suffered from a disability and anxiety. Other negative comments when linked to anxiety, a symptom of her disability created such a negative impression that the Human Resources department required another reference. No prior discussion had occurred with her, and the contents were at odds in a fundamental way to what was previously communicated to her by her manager.

Some shortfalls arose relating to how the contents of the reference were first communicated to the complainant. However, the manager denies that he knew that the complainant suffered from anxiety or that she had shared with him that she had a mental disability.

The complainant had been out on long term absence and so It was not possible to sit down and review with her the shortcomings that he highlighted in the reference.

The promotional opportunity and criteria that the reviewing manager assessed the complainant against were honestly held views based on examples and data. It was not discriminatory and the approach that he took, he would also apply to any subordinate. It was thorough and fair and exactly as others also would be considered.

The reference stated:

·       Time Management (she) found it difficult to prioritise and manage workloads (e.g. BAHA orders/SAP) and on occasion appeared to be overwhelmed. She was provided with flexible working hours within the Department and the opportunity to work from home

·       Leadership: (she) did not consistently demonstrate key requirements to lead/direct primary project/ allocated work…These had to be monitored and followed up to ensure work streams were being implemented. She was able to follow task orientated approaches well e.g. when asked to arrange meetings/telecons. She was uncomfortable communicating in groups.

·       Reaction to Busy Environment

The substantive periods of sick leave over the 2 year period arising during (her) time allocated to (department anonymised) lead to significant volume of work being redistributed to other staff and impacting upon continuity of (anonymised department projects/workstreams).

On one occasion (she) did not attend an important working group meeting to represent the (department). This was not communicated to me at the time so that apologies cold be sent to the meeting, and only came to light when an update from the meeting was requested. The reason given was that she experienced anxiety and had to return home.

Reason for not Recommending:

Inevitably posts of grade VI/V11 will present with frequent and unpredictable challenges, require an ability to clearly prioritise and risk assess within allocated workstreams and require an ability to communicate requirements clearly/direct staff. These skills were not consistently demonstrated during (her) relatively short time in (department), considering the level of sick leave and accumulated annual leave arising owing to sick leave in her previous post.

The Employment Equality Act 1998 as amended (the Act) defines disability as:

disability” means—

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

Section 6 of the Act states that discrimination occurs 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 ’ ) which —

And the disability ground at subsection 2 is defined as:

(a)    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”),

The Labour Court in several determinations have repeatedly emphasised that the facts must be significant to give rise to such an inference and in a recent case Public Appointments Service and Mr Bernard Lester (EDA 2022) the Court detailed what this meant:

Discussion and Decision

Section 85A (1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

This Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“The type or range of facts which may be relied upon by a complainant may 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.”

The Act at section 85A. sets out the burden of proof that the complainant must meet before the respondent is required to rebut a presumption or inference of discrimination.

85A. — (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

The respondent states that this test has not been met as the complainant has failed to show that she was treated less favourably to a comparator.

The respondent accepts that the complainant has a disability as provided for under the Act.

Purdy at 17.47 in Equality Law in the Workplace 2015 edition Bloomsbury states:

to establish direct discrimination, employees have to show that they were treated less favourably than another person is, has been or would be treated in a comparable situation on grounds of their disability and that the person in the comparable situation has no disability or has a different disability to the claimant; there must be a comparator who is in a ‘comparable’ situation; there must be a connection between the disability and the alleged act of discrimination.

The comparator chosen by the complainant it was alleged had a similar absence record at a point and this had not impacted on her promotion or reflected in an unsatisfactory reference.

The response which was shared with the complainant indicated that the comparator had a modest level of absenteeism.

The complainant in a written submission in August 2020 prior to the last day of hearing stated:

The evidence provided by (respondent) shows that the Comparator had comparable levels of sick leave up until I went on sick leave on 13th September due to my disability. I received an unsatisfactory reference that was due to my sick leave from 13th September as a result of my disability. This is discrimination and should never have be used to form the basis for an unsatisfactory reference. I draw attention to the following:

Under the Employment Equality Acts:

- I note that if a person applies for promotion they cannot be discriminated against because of either

current or past experience of mental health difficulties

- If an employer wishes to disclose comprehensive, subjective details about an employee, it is important to be mindful that the details are in no way connected to the grounds of discrimination set out under the EEA

In the documentation I submitted responding to the evidence of my “underperformance” submitted by the (respondent), I have clearly shown there was no underperformance issues with me. GN was never going to address my “underperformance” issues as there was none. GN used the excuse that I was underperforming to justify the offending reference and the fact that he gave me an unsatisfactory reference was due to my sick leave in relation to my disability and not for the time I was actually employed by him. My disability was in fact the reason why GN didn’t recommend me for promotion and by saying he wouldn’t re-employ me. GN also made reference to extremely sensitive personal data that I had confided in him and used against me in the said reference. I believe I have been subjected to breaches of confidentiality that constitutes less favourable treatment that would be afforded to someone without a disability

The Comparator that I mentioned at the last hearing was involved in a serious incident. I will not go into the details as it’s not my place but this incident was so serious that a complaint was made against her by one of the members on her team. This resulted in her being called in a HR representative, her line manager and a senior manager of her area. Yet again I will not go into the outcome of the meeting with her management as it’s not my place. This Comparator then went on to receive a satisfactory reference and promoted to Grade VII. I got an unsatisfactory reference and lost out on a promotion and was certainly treated less favourably.

Everyone on the panel for promotion is a Comparator. I was treated less favourably than all the other candidates on the panel because of this unsatisfactory reference:

- They went on to be promoted

- Only one reference would have been required for staff within the (respondent) going for a promotion

- I was requested to provide 3 references

The Act specifically provides that difference is in relation to another employee without any disability; the employer states they need to specifically reference one comparator.

Charleton J in Nano Nagle School v Marie Daly [2019] IESC 63 provides a framework that is useful to analyse the facts as detailed in the reference:

Leeway to a reasonable degree is to be afforded to disabled persons in order to enable them to do a job. As mandated by section 16(3) of the 1998 Act, those with a disability are ‘fully competent to undertake and fully capable of undertaking’ a job on ‘reasonable accommodation … being provided by the person's employer.’ Examples may assist. A person putting together exhaust manifests in a car factory requires to be both highly mobile and very strong, since the items are both heavy and cumbersome, as well as skilful in welding. A physical incapacity coming about while holidaying during employment may mean inability to do the job. On the other hand, a person sitting at a work bench and assembling ignition systems for a car may just as easily do that job from a wheelchair. That person's place of work or access to a workbench may need sensible adjustment. All these assessments are fact-based and legal analysis is not the object of the legislation, the Directive or the Convention. Returning to an earlier example: the principal flute in the symphony orchestra becomes disabled through an accident and is in a wheelchair. She is still a brilliant flautist with a golden tone but, to get on stage, she needs a ramp. To go on tour, a hoist or other measures are needed to get her on the bus. To be fully comfortable, a disabled toilet needs to have easy access to the ladies dressing room in the rehearsal venue or concert hall. These are what the legislation refers to as appropriate measures. And the Act requires that every ‘employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability’ to get to their place of work, to ‘to participate or advance in employment’ or to obtain ‘training’. Those steps must be taken ‘unless the measures would impose a disproportionate burden on the employer.’ What is proportionate or disproportionate descends into cost analysis based on ‘the financial and other costs entailed’, the scale of the employer, the state of the employer's financial health and ‘the possibility of obtaining public funding or other assistance.’ Section 16(4) amounts to a reiteration in stating that what needs to be done, if it can reasonably be done, is to take ‘effective and practical measures, where needed in a particular case, to adapt the employer's place of business to the disability concerned’. That can include ‘the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources’. Recital 20 of the Directive is not contradictory of this analysis:

Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks or the provision of training or integration resources

The reference as provided by the line manager addresses suitability under:

·       Competence

·       Capability

The grievance process had been initiated and the respondent employer through their investigation of the complaint; identified a number of deficiencies in how the line manager determined that the complainant’s performance or competency was less than satisfactory in some areas; without prior consultation with her. Independent of a claim based on Employment Equality Law; fairness and reasonableness would necessitate reviewing such a negative finding with the employee, as the consequences of such a reference would negatively impact on promotion.  Were those negative views directly linked to the complainant’s disability? Several statements in the reference appear to raise an inference or presumption that in fact that was so:

·       Time Management (she) found it difficult to prioritise and manage workloads (e.g. BAHA orders/SAP) and on occasion appeared to be overwhelmed. She was provided with flexible working hours within the Department and the opportunity to work from home

·       Leadership: (she) did not consistently demonstrate key requirements to lead/direct primary project/ allocated work…These had to be monitored and followed up to ensure work streams were being implemented. She was able to follow task orientated approaches well e.g. when asked to arrange meetings/telecons. She was uncomfortable communicating in groups.

On one occasion (complainant) did not attend an important working group meeting to represent the (department). This was not communicated to me at the time so that apologies cold be sent to the meeting, and only came to light when an update from the meeting was requested. The reason given was that she experienced anxiety and had to return home.

The complainant at the hearing stated that she had informed her line manager that she suffered from a mental health disability. On the evidence and indeed the reference which directly refers to anxiety; I prefer the evidence of the complainant. The manager at the hearing stated he was not aware she had a mental health disability.

The complainant is of the view that her absence from work; because it arises due to a disability means that it cannot be considered as a factor in promotion. I don’t concur with that view. It is entirely reasonable to detail an absence record as that goes to the core of the Capacity to fulfil the contract and promotion.

Other matters that appear to be directly linked to the complainant’s disability relate to competencies and it is clear the complainant was taken aback by these comments as they had not been discussed with her. There is no question that they negatively impacted on her promotion.

The respondent states a comparator (with no disability or a different disability) is required to be identified to show that less favourable treatment has taken place. The comparator relied upon to show that she was discriminated against based on difference in treatment relating to attendance has been rebutted by the respondent employer, as that employee has a better record than the complainant.

The complainant alleges that her manager has discriminated against her by giving her a biased reference. She relies on the prejudicial matters detailed in the work reference that are specifically linked to behaviours and tendencies that question her competency to carry out the role and argues that these negative prejudicial observations are linked to her mental disability. Those observations in the reference were not discussed with her prior to the reference issuing. The stage 1 grievance panel accepted that this was not good practice.

Who is the comparator regarding the allegation of discriminatory bias relating to competency? Would this manager have detailed similar comments about a subordinate who has no disability or a different disability?

Regan in Employment Law 2nd Edition Bloomsbury states at paragraph 17.12:

‘Less favourable treatment’ is more commonly known as ‘direct discrimination’ although that particular phrase is not used in the Employment Equality Act. In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. If a complainant is unable to demonstrate that the chosen comparator/s were treated less favourably, if for example all employees were treated equally poorly or unlawfully, the claim of discrimination will fail. The wording of s 6 ‘would be treated’ allows for the use of hypothetical comparators in appropriate circumstances of alleged discriminatory treatment, other than in relation to equal pay where an actual comparator is required.’

The legislation in this case provides for a hypothetical comparator. Would the manger have treated another subordinate with no disability the same as the complainant? Or is it the practice to give negative assessments without prior consultation to all employees? That is not the case with this employer. Therefore, can it be concluded that less favourable treatment occurred to this individual when compared to others who do not have a mental disability?

The manager referenced examples that clearly are linked to someone who at times suffers from anxiety and how that might manifest in the workplace and their performance.

The manager was informed by the complainant that she suffered with a mental disability.

The grievance panel stated that while there were mitigating reasons why the reference was issued without being reviewed with the complainant, it should not have occurred and they allowed the complainant to submit another reference.

There are three elements required to ground a presumption as stated by Purdy:

to establish direct discrimination, employees have to show that they were treated less favourably than another person is, has been or would be treated in a comparable situation on grounds of their disability and that the person in the comparable situation has no disability or has a different disability to the claimant; there must be a comparator who is in a ‘comparable’ situation; there must be a connection between the disability and the alleged act of discrimination.

This case relates to alleged unfavourable treatment based on:

·       Competency

·       Capability

The stage 1 grievance investigation concluded (dated 8th of August 2019):

·       “Evidence shows that the Complainant had been surprised to receive the poor reference and followed the advice sought from the National Recruitment Services in pursuing her complaint under the framework of the Grievance Procedure 2004”

·       In relation to the Respondent, evidence shows while he was concerned in relation to (the complainant’s) under performance he did not sit down with the Complainant to discuss this with her as long term sick ensued before it could be addressed.

·       The mitigating factor in this situation was the high level of absence during the first year i.e. circa 17 weeks in total which impacted on the Respondent providing feedback on performance. In addition, the respondent was advised to seek a third reference  (this was a type, clarified at hearing a 2nd reference) and declined to do so

Has the complainant made out a Prima Facie case to ground her complainant of less favourable treatment on the disability ground?

— 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 ’ ) which —

And subsection 2 is defined as

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”),

The Prima Facie test as referenced in In Cork City Council v McCarthy EDA 21/2008, is:

“The type or range of facts which may be relied upon by a complainant may 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.”

The complainant has submitted the stage 1 grievance that shows that she received less favourable treatment as determined by an independent investigation panel as evidenced by the absence of prior consultation with her before assessing her competency.

The reference issued by her line manager references her unsuitability under the leadership competency; linked to anxiety and uncomfortableness communicating in a group which is prima facie evidence of a link to her mental health disability.

The evidence on the balance of probabilities indicates that the line manager knew about the complainant’s disability prior to writing the reference based on the documentary factual reference to anxiety in the reference itself; and the evidence of the complainant given at the hearing, that I prefer, based on the context of normal working relationships and that she did tell her manager why she was absent from work.

The comparator relating to alleged discrimination on the ground of disability is 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”) and the Act provides for a hypothetical comparator, which in this case is appropriate.

The complainant argues that she has raised a presumption or inference of discrimination as follows:

1.       A negative leadership competency assessment was made by her line manager and not coping well with work assigned to her and can be overwhelmed at times.

2.       This negative assessment directly referenced anxiety and an uncomfortableness dealing with groups-known conditions arising from her mental health  disability

3.       No consultation took place with her; prior to the completion of the negative competency assessment

4.       A stage one grievance investigation  concluded that this should not have occurred

5.       The comparator is someone who has no disability and is a hypothetical comparator

6.       Her line manager knew that she had a mental health disability prior to completing the reference

7.       The line manager with this knowledge and without prior consultation; concluded that her leadership skills, time management were not satisfactory and linked that assessment to anxiety and uncomfortableness in groups

8.       A person with no such mental health disability is highly unlikely to be assessed in such a manner that repeatedly and without prior consultation cited her anxiety, being overwhelmed and her uncomfortableness being in a group as reasons for giving her an unsatisfactory reference

9.       Her disability was directly linked to the poor assessment under leadership competency and time management

10.   This assessment was done without any objective assessment or prior consultation.

The primary facts as detailed do raise the inference of discrimination and therefore the burden of proof shifts to the respondent to show that they did not discriminate against the complainant.

The respondent rebuts the presumption and states the claim is weak and relies only on a passing remark to anxiety in the reference issued by her manager.

The complainant’s reference is a standard reference form and requires assessment of attendance and evaluation under a number of prescribed competencies. Each score has to be based on further details particularly regarding any unsatisfactory score. The manager gave detailed reasons under attendance; time management; reaction to a busy environment and leadership skills. He gave a reason for each score based on concrete examples.  In addition he also referenced the reasonable accommodation that he had provided to the complainant by allowing her to have flexi-time and to work from home.

It is not up to a tribunal to second guess the manager. The manager’s judgement was reasoned, fair and without bias. He treated the complainant like any other subordinate. He did not discriminate against the complainant. He in fact had gone out of his way to provide flexibility regarding working time and also flexibility to work at home. While he knew the complainant was absent from work, he did not know the medical reason for that absence.

The manager followed the (respondent) recruitment process and gave an honest and truthful assessment of the candidate.

The claimant lodged a grievance under the (respondent) grievance procedure and while taking issue with the reference at no time raised a complaint of discrimination.

That grievance investigation afforded the complainant a right to replace the offending reference and also fairly recognised that her attendance would have to reviewed; however, in a constructive and open way. The respondent was reasonable in how they responded to her grievance. The recommendation fully corrected any wrong that she suffered.

The grievance recommendation also provided for mediation with her manager to explore how the offending reference could be amended.

The complainant was informed that if unhappy with the outcome of the stage 1 grievance recommendation that could be appealed, which she did not at the time of referring this matter to the Workplace Relations Commission.

While the manager was aware that the complainant had in the past attended with Occupational Health Department, and prior to joining his work area had been absent from work, he was not aware of the specifics of her illness.

The complainant has raised the presumption of discrimination. The respondent rebuts that presumption by saying:

1.       While he knew the respondent had been absent previously he was not aware of the specifics of her illness

2.       He was very accommodating in terms of flexi-time and flexibility to work from home

3.       All of the shortcomings detailed were based on facts and examples and a fair assessment without bias or prejudice

4.       The manager filled in a standard reference and answered honestly

5.       The manager would have reviewed the deficiencies with her; however, she was absent for a very lengthy period

6.       In similar circumstances he would have reviewed a subordinate without such a mental disability in the same way

7.       While the grievance appeal highlighted some deficiencies in how he completed the review, it did not find those observations biased or prejudiced

8.       The assessment was made in consideration of a senior role and the comments made were fair in that context

9.       The complaint of discrimination was not raised initially or at the stage 1 grievance hearing

10.   The complainant wouldn’t engage in mediation

11.   The alleged wrong could have been fixed as an option to present a different reference from another manager was provided and not acted upon

12.   There were checks and balances in the process so that any grievance could be aired and remedied.

The complainant has presented facts that raise the presumption of discrimination. At the hearing of the complaint and in the written submission, the respondent employer has argued that no discrimination has taken place. That the alleged negative assessments when viewed in context were honestly given and based on examples, were not subjective in nature, were made having regard to the senior role being applied for and in any case, checks and balances exist, to ensure any genuine grievance is fairly heard and addressed. That is what occurred in this case. The complainant had been absent from work and that was a matter of relevance to be raised. The complainant at times did become overwhelmed, found it difficult to prioritise, did absent herself from an important meeting due to feeling anxious and at times was  uncomfortable in groups. These comments out of context seem harsh; however, they are not when viewed against the criteria and competencies of a leadership role and significant promotion. The complainant failed to exercise her right to present a different reference. The manager was correct to raise the matter of attendance. The matters detailed by the manager, were genuine areas of concern and not examples of bias based or evidence of direct discrimination.

The complainant states that the primary facts that she has detailed raises the presumption of discrimination. The grievance panel did find in her favour on a substantial aspect of her complaint. That importantly allowed her to ask someone else to provide a reference. However, at no stage has the employer stated that direct discrimination has occurred based on her mental disability or apologised for the discrimination. The employer in fact has said it has never occurred. The complainant performed well at interview to be shortlisted despite her mental disability; yet is marked down on comparable skills by her manager that have a clear reference to anxiety. That reference was earth shattering and it’s insensitivity in the context of a mental disability cannot be overstated. The complainant argued that she did receive less favourable treatment and the reference was biased as evidenced by the numerous comments in the reference that directly link to her disability. The employer has not effectively rebutted the presumption of discrimination

Conclusions

Based on the primary facts detailed by the complainant I have determined that she has raised the presumption of discrimination.

That presumption only relates to competency and not to attendance as that was correctly referred to by her manager as an area of concern.

The grievance panel identified shortcomings by the manager failing to review with the complainant his competency assessment, which was a performance review of her work, prior to issuing the reference.

The reference contains several remarks that link directly to an individual who suffers from a mental disability as detailed.

The employer does not dispute that the complainant has a mental disability.

Those negative comments had a very negative impact on the complainant and also a material one when required to look for another reference.

A difference in treatment when compared against a person without a disability did occur as it is not practice to issue a performance review without first reviewing that assessment with the relevant employee particularly with regard to areas of underperformance, and in this case that negative assessment contained numerous observations that could be linked to the complainant’s disability.

The manager knew about the complainant’s disability.

The employer has consistently denied that discrimination has occurred.

The employer has not rebutted the prima facie presumption that discrimination has occurred to a point that the facts as detailed by them can be relied upon and have a significance to displace the presumption and that would credibly present an alternative explanation to rebut the inference. In those circumstances I determine that the complainant was directly discriminated against on the ground of her disability.

The respondent employer argues that there are mitigating circumstances and that the employee was allowed to seek an alternative reference to correct the wrong. However, the employer has never accepted that the employee was discriminated against. The employee performed very well at a competitive interview to be shortlisted. The effects of the offending reference have been severe. I have determined that direct discrimination on the ground of disability has taken place. However, there are a number of mitigating factors in this case; the attendance record was correctly referred to as impacting on possible promotion and the complainant failed to present a second reference and in effect withdrew from the competition and being placed on the panel subject to a second satisfactory reference. The grievance panel did present an alternative path to resolve the complaint, that on the balance of probabilities would have given rise to the complainant being placed on the panel.

The Act as section 82 provides that:

(4) The maximum amount which may be ordered by the  Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c ) or (1)(f ) shall be —

( a ) 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, an amount equal to the greatest of —

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) € 40,000

Allowing for the mitigating factors I award 6 months compensation based on the complainant’s remuneration at the date of referring the case to the Workplace Relations Commission as a proportionate and also dissuasive award.

The employer has not rebutted the prima facie presumption that discrimination has occurred to a point that the facts as detailed can be relied upon and have a significance that on the balance of probabilities displace the presumption and that would credibly present an alternative explanation to rebut the inference of discrimination. In those circumstances I determine that the complainant was discriminated against.

The complainant has been discriminated against and allowing for the mitigating factors I order the respondent employer to pay her 6 months compensation based on the complainant’s remuneration at the date of referring the case to the Workplace Relations Commission as a proportionate and also dissuasive award.

Furthermore I have exercised my discretion to anonymise the parties on the facts that the complainant presented evidence of a very sensitive nature based on her medical condition and disability that in these circumstances justify anonymisation.

Direct Discrimination-Mental Disability