Complainant

Respondent

Anonymised Parties

A Quality Assurance Executive

A Financial Institution

Representatives

Not represented

Byrne Wallace Solicitors

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-00033198-002

17/12/2019

This hearing concerns an allegation of discrimination on the ground of disability and the complainant claims that the most recent act of discrimination occurred on the date of his dismissal, May 8th 2019.  He submitted this complaint more than seven months later, on December 17th 2019.  In submissions in advance of the hearing, Ms Ní Longáin argued that, as the complaint was submitted more than six months after the last incident of alleged discrimination, it is past the time limit set out at section 77(5) of the Employment Equality Act 1998 (“the Act”).

By way of explanation for the delay, the complainant said that he went to his solicitor immediately following the termination of his employment and that his solicitor delayed submitting his complaint.  However, in the letter from Tully Rinckey Solicitors on February 24th 2020, Mr Landers said that he had taken instructions from the complainant regarding the delay: 

“We are instructed by our client that he was in aggressive treatment for cancer… and as a consequence, was not in a position to provide timely or on occasion, considered, instruction.  But for the delay in rightly prioritising his treatment, our client would have been in a position to present the complaint on time.”

The complainant said that he was admitted to hospital in May and June 2019 and that his treatment is continuing.  He said that he attended a meeting in June 2019 to appeal against his dismissal and that he was discharged from hospital only the day before.

At the hearing, I agreed with the parties that I would reserve my position on the complainant’s explanation for the delay submitting his complaint, and that I would proceed to hear his evidence regarding the facts that he alleges give rise to a presumption of discrimination.  For the respondent, Ms Ní Longáin accepted that, if I decide that the complainant has shown reasonable cause for the delay submitting his complaint, and, if I decide that his evidence raises an inference that discrimination has occurred, the hearing will resume on a second day.

Decision on the Extension of the Time Limit

Having considered his evidence, it is my view that the complainant’s illness and his treatment for cancer is a reasonable cause for the relatively short delay of five weeks in submitting his complaint.  I have decided therefore, that, in accordance with section 77(5)(b) of the Act, I have jurisdiction to proceed with my enquiry.

The complainant is a senior professional in compliance and quality assurance.  On June 11th 2018, he commenced with the respondent in a permanent position as a Senior Quality Assurance Team Leader.  His annual salary was €80,500.  In November 2019, his probation was extended and on May 8th 2019, his employment was terminated for reasons related to his performance.  He claims that no consideration was given to the fact that he has dyslexia and he argues that his dismissal was discriminatory on the grounds of his disability. 

The complainant outlined his background before he joined the respondent in June 2018.  Over the last 20 years, he has worked in banking, aerospace, forestry and energy and he has managed projects involving teams of up to 30 people.  Most of the assignments he has undertaken have been in the area of quality assurance.  He is now employed by one of the “big four” consulting firms.

In May 2018, having been interviewed for a daily rate contract role, the complainant said that the respondent’s Head of Quality Assurance asked him to apply for a permanent position.  From his start date, he was on six months’ probation and he understood that this could be extended to 10 months. 

The Head of Quality Assurance was the complainant’s line manager and for the remainder of this document, I will refer to her as “HQA.”

The complainant said that he has dyslexia and to overcome his difficulties with writing, he uses an application on his phone to record his spoken notes and to transcribe them into text.  He said that writing is more problematic for him than reading.  Two months into his job with the respondent, the complainant said that he was at a meeting and he was asked to take the minutes.  He refused and at the end of the meeting, he told two colleagues (who he named in his evidence) that he has dyslexia and that he has difficulties writing notes.  He said that he also told his manager, HQA and she informed a member of the Human Resources (HR) Department.  He said that he received an email from HQA and the person in the HR Department and he said that “they understood” that he had difficulties. 

The complainant said that HQA was critical of his report-writing.  In one document, he said that she didn’t like his use of the conjunctive, “and” four times in a section of a document.  He said that she criticised him for using bullet points instead of numbers.  He said that these criticisms were in relation to internal team reports and were not for issuing to external parties.  He said that HQA identified problems with documents that he produced and she made corrections.  He said that she knew that he has dyslexia, but that no account was taken of this and he got no help.

Asked about how his dyslexia affected his work, the complainant said that he doesn’t see letters, but that he recognises word shapes.  He sees “d” and “b” the wrong way around and he has difficulties spelling.  He said that he could read a document and HQA could read the same document and that she would notice mistakes.  He said that he doesn’t see the mistakes and that there was no leeway for him in this regard.

The complainant said that, in his various roles in previous years, he used the “Agile” approach to project management, and that this involves very little documentation.  He said that he understood that the intention in the Quality Assurance Department was to start using Agile, but that this didn’t happen.  The process used in the respondent organisation is referred to as a “waterfall system,” and the complainant said that this relies on paperwork.   His previous jobs were in a “pure Agile environment,” and he didn’t need support for his dyslexia.

The complainant said that his performance was reviewed on November 9th 2018, six months after his start date.  His probation was extended and he was reviewed again on December 20th and finally, on April 30th 2019.  On May 8th, a member of the HR team invited him to a meeting, at which he was informed that his employment was terminated due to unsatisfactory performance.  The complainant said that the second two performance reviews were duplicates of the first report, and that they gave him “nothing to go on.”  In his evidence, the complainant was highly critical of these performance reviews.  He said that at one point, he asked HQA “how far off the mark am I?” and that she replied, “not that far.”  But then, on May 8th 2019, he was let go.

Cross-examining of the Complainant

Ms Ní Longáin asked the complainant if, when he started working with the respondent, he knew there was a “waterfall system” in place.  The complainant agreed that this was the case, but he said that he was told that they were moving to an Agile system. 

Ms Ni L said that the respondent’s case is that, in February 2019, eight months after he started in his job, the complainant told HQA that he has dyslexia.  The complainant said that he couldn’t remember when he told her.  Ms Ní Longáin referred to an email from HQA on March 4th 2019 regarding their conversation about the dyslexia, following which he said that didn’t need any support.  The complainant said that he remembers telling his two colleagues before he told HQA. 

Ms Ní Longáin said that HQA asked the complainant what support he got in his previous jobs and that he said that he didn’t need support in previous jobs because he didn’t have to deal with so many documents.

When Ms Ní Longáin asked him why he didn’t inform anyone about his dyslexia when he joined the organisation, the complainant replied that it’s very embarrassing to talk about it, particularly at an interview.  He said that when you get started on a project, it takes time to understand how many documents are involved.

When he was asked why he didn’t contact someone in HR and explain that he was having difficulties, the complainant said that he had never been in this situation before, with such a heavy load of documents.  The complainant agreed that he had ongoing one to one meetings with HQA.  In his performance review in November 2018, Ms Ní Longáin said that HQA told the complainant that she had concerns, not simply about documentation.  She said that the respondent’s organisation is highly structured and audit-driven and that his analysis was not up to the required standard.  The complainant agreed that he replied that he hadn’t worked in an environment with so many documents before.

Commenting on his performance at the end of the November 2018 review, Ms Ní Longáin said that HQA noted that the complainant struggled with his understanding of the projects he was involved in and with his ability to support others in their roles.  She noted that during the next period, “we will assess if he is the right fit” for the job.  The complainant said that this was the meeting at which HQA said that he wasn’t “far off the mark.”

At the next performance review in December 2018, Ms Ní Longáin said that some of the previous concerns were repeated and HQA wrote that the complainant “struggled with completing tasks within the required timeframes” and that this had been discussed with him at their regular meetings.  The complainant disagreed and said that he attended a two to three hour meeting with HQA every Friday, but that she didn’t go through his reports.  He said that his performance was not discussed at these meetings and that their purpose was for HQA to get a status update on projects.

Ms Ní Longáin put it to the complainant that at no point, when HQA was critical of his work, did he suggest that he needed accommodation for his dyslexia.  The complainant replied that he spoke about the volume of documents and that HQA became angry and interpreted his comments about the volume of documents in their department as a personal criticism.

On March 4th, Ms Ní Longáin said that the complainant was advised in an email to contact a named person in the HR team about his dyslexia.  He said that he didn’t know that person, and although he remembers getting the email, he didn’t follow it up.  He said that it’s embarrassing to talk about it.  He agreed that, before he started in the role, he was examined by the respondent’s occupational health consultant, but that he didn’t mention his dyslexia.  He said that it had never been an issue in any other job.

In the report of his final probation review on April 30th 2019, Ms Ní Longáin said that HQA noted that the complainant had found adjusting to the role challenging and that the performance issues that needed improvement had not been addressed.  She concluded that he was not suited to a role in the organisation.  The complainant replied that these were the same matters that were raised in the previous reports and that the reports were almost duplicates of each other, containing even the same spelling mistakes.

Ms Ní Longáin referred to a meeting that the complainant attended to challenge the outcome of his probation review.  He was accompanied at the meeting by a union representative and during what she described “an extensive discussion,” at which the complainant challenged the findings of HQA, he did not indicate that dyslexia was the cause of his performance problems.  The complainant said that he couldn’t remember if he did or not.

On May 14th 2019, the complainant received a letter confirming that his employment was terminated, due to what Ms Ní Longáin said were his manager’s “continued concerns about the completion of work” and other issues.  He appealed against the termination of his employment and in a letter to the Head of Employee Relations on May 16th 2019, he set out eight grounds on which he based his appeal, none of which concerned his dyslexia or his need for reasonable accommodation.  The complainant said that he didn’t feel that the criticism he received was warranted and that he was criticised because he has dyslexia.

The complainant said that he attended the appeal meeting the day after he was in hospital getting treatment for his cancer, but he agreed that the meeting should proceed.  He said that he was accompanied by a union representative.  He said that he told the Head of Employee Relations that he had never experienced the volume of documents that he had to deal with in his job.  He agreed with Ms Ní Longáin that he told the Head of Employee Relations that he has dyslexia.  Ms Ní Longáin said that, having received the notes of this meeting, the complainant replied, with two pages of amendments, but with no reference to dyslexia or to a need for reasonable accommodation.  The complainant replied that the respondent “knew I had dyslexia” and that “it would have been nice for someone to come to me.”  Ms Ní Longáin referred again to the email of March 4th 2019, when the complainant was advised to contact a named person in the HR Department.  The complainant repeated that he “didn’t know who that woman is” and that “it’s very difficult for someone with dyslexia to talk about it.”

At the conclusion of his evidence, in response to a question from me about what would have helped him to succeed in his job, the complainant said that Agile projects have a better end result, and that the outcomes are clearer.  With Agile, only two or three pages of documents are required, even months into a project’s lifecycle.  He said that the respondent never took this approach and that other companies that he worked in didn’t have the same volume of documents.  He said that the problem was not only the volume of documents, but that he was expected to create documents. 

The Legal Framework

The issue for consideration here is discrimination on the disability ground, which is listed at section 6(2)(g) of the Employment Equality Act 1998 (“the Act”), as one of the nine discriminatory grounds.  It is the complainant’s case that he was dismissed because of the failure of the respondent to provide him with reasonable accommodation to support his dyslexia.

In Section 2 of the Act,  

disability” means—

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

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

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

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

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.

The website of the Dyslexia Association of Ireland provides a definition of dyslexia, from the Task Force on Dyslexia which reported in 2001:

“Dyslexia is manifested in a continuum of specific learning difficulties related to the acquisition of basic skills in reading, spelling and/or writing, such difficulties being unexplained in relation to an individual’s other abilities and educational experiences.  Dyslexia can be described at the neurological, cognitive and behavioural levels. It is typically characterised by inefficient information processing, including difficulties in phonological processing, working memory, rapid naming and automaticity of basic skills.  Difficulties in organisation, sequencing and motor skills may also be present.”

I am satisfied that dyslexia falls within the in the definition of disability as set out at sub-section (d) above, in that it is a learning difficulty related to reading, writing and the processing of information.

My very basic research on the subject of dyslexia informed me that 10% of the population has the condition and that it occurs on a continuum of mild to severe.  From this, it must be the case that around 10% of jobs are occupied by people with dyslexia, although in my experience of many workplaces, very little is known about the needs of people with dyslexia or how to support them to progress in their careers.  I know also that many highly successful individuals have dyslexia, and I include the complainant in this group.  At the hearing, he said that, over the past 20 years, he has had roles in a diverse range of industries, including banking, energy and aerospace and when he finished up with the respondent, he joined a global consulting firm.

Reasonable Accommodation

Section 16 of the Employment Equality Act 1998 was amended by the provisions of the Equality Act 2004, which, in its turn, was enacted to transpose Article 5 of Council Directive 2000/78/EC, establishing a general framework for equal treatment in employment and occupation.  Sub-sections 3 and 4 establish an obligation on employers to provide appropriate measures to support a person with a disability:   

(3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as  ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability -

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(4) In subsection (3) -

‘appropriate measures,’ in relation to a person with a disability  -

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of  paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but 

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself;

(The remainder of this sub-section (c) is not relevant to the complaint under consideration here).

It is apparent that the intention of this amendment is to place an obligation on an employer, subject to the “disproportionate burden” criterion, to put in place certain measures to enable a person with a disability to be fully competent to undertake the duties of their role.

The Burden of Proof

Section 85A of the Employment Equality Act 1998 – 2015 transposes into Irish law Article 19(1) of the EU Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.  Sub-section 1 of section 85A states:

“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 effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Describing this evidential burden, in the decision of Mitchell v Southern Health Board, DEE 11, [2001] ELR 201,the Labour Court held that,

“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 those 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.”

My task therefore, is to consider if the complainant has shown that, based on the primary facts, he was discriminated against by the respondent when he wasn’t provided with reasonable accommodation for his dyslexia.

The Primary Facts

In his evidence, when I asked him how he is affected by dyslexia, the complainant said that he sees shapes instead of words, and that he has more difficulties with writing compared to reading.  He said that, in previous roles, he never needed assistance to help him to complete tasks.  He said that he uses an “app” on his phone to transcribe speech into text.  Apart from his statement that he has more difficulties with writing compared to reading, the complainant did not say how he came to be diagnosed with dyslexia, how he managed at school and with exams and how it affects him in his life in general.

It appears that in late February 2019, eight months after he started with the respondent, the complainant told his line manager that his dyslexia was impacting on his ability to deal with the volume of documents associated with his job.  The manager contacted the HR Department to see if help was available and, on March 4th, a member of the HR team wrote to the complainant inviting him to contact her about his dyslexia.  The complainant didn’t get in touch, because, he said, he didn’t know the person.

I find it strange that a senior manager declines an offer of assistance because he is not familiar with the person making the offer.  In his evidence, the complainant said that it would have been “nice” if someone had approached him.  If he was genuinely serious about getting help, it is my view that he would have accepted the offer of the meeting with the person from the HR team.

At no stage during his evidence did the complainant say what he needed to assist him in his job.  I accept that, even in the absence of a request for appropriate measures, it falls to an employer to be proactive and to take action to support people with disabilities in the workplace.  In the case of a person with dyslexia however, a manager or a HR Department has no insight into an individual’s experience of the condition or the specific supports that would help them, until that person explains how they are affected and what they need.

The website of the Dyslexia Association of Ireland describes the variety of technical solutions that can help people to interpret data and to write reports effectively.  Assistive technology is available which seems to be inexpensive and the simple strategy of printing onto coloured paper also appears to help; but the complainant did not refer to any of this support and, apart from the phone app, he did not indicate that he had used any technical supports in his previous jobs.  He did not say what it was that would help him to deal with the volume of documents that were part of his role, and he did not suggest that if the number of documents were reduced, he would be more effective.  Apart from his reference to the Agile system, which was not in use in the respondent organisation, he provided no indication of what would have enabled him to successfully pass his probation and remain in his job.

At the hearing to appeal against his dismissal, the complainant cited eight grounds which, in his view, showed that his dismissal was unfair.  None of these related to his dyslexia.  It is regrettable that the complainant did not produce this document in his evidence, or any other document that would have supported his case that he was not provided with reasonable accommodation.

Conclusion

Having considered the complainant’s evidence, it is my view that he was never serious about getting accommodation for his dyslexia.  Based on his past experience of not needing any support, it seems to me that he managed the condition with relative ease.  He did not mention dyslexia at the start of his employment, and when he came to appeal against his dismissal, he did not suggest that he was prevented from succeeding because of his dyslexia.  When he was offered support, he failed to follow up on the offer, indicating to me that getting support for his dyslexia was not at the top of his agenda.

In the absence of any prescribed assistance that could have been made available to him if he had requested it, it is my view that the reasonable accommodation that the complainant required was that which is referred to at section 16(4)(c) of the Act and was,  

“…a facility or thing that the person might ordinarily or reasonably provide for himself or herself.”

Having considered the complainant’s evidence, I find that his dismissal was not the result of a failure to provide him with reasonable accommodation for his dyslexia, but for other reasons and because his manager concluded that he wasn’t the “right fit” for the job.  I understand his grievance at the indignity of this conclusion, and I appreciate that he is genuinely offended.  However, I cannot connect his experience of having dyslexia and its effect on his work with any discriminatory act on the part of his employer.

I am not satisfied that the primary facts put forward by the complainant are adequate to raise an inference of discrimination and, on this basis, the burden of proving that discrimination did not occur does not shift to the respondent.

Discrimination on the ground of disability, dyslexia