Complainant

Respondent

Parties

Christian  Goulart Mcnerney

Dept Of The Environment, Climate And Communication

Representatives

Ryan Mckinney FÓRSA

Emma Cassidy BL instructed by  Karen Duggan Chief State Solicitors Office

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-00044562-001

10/06/2021

The Complainant commenced his employment as an Administrative Officer with the Respondent on 15 June 2020. He asserted that the Respondent did not afford him reasonable accommodation when they instructed that he return from Brussels to Dublin in December 2020. He also alleged that he was harassed by the Respondent.

The Complainant stated that the Respondent refused to consider a request for a workplace accommodation despite the fact that he had a disability. He stated that following a request he made on 12 October 2020 to temporarily work from Brussels, where his family lives, the HR department did not inform him of the correct procedure to request a workplace accommodation when he brought up the subject.

He also stated that his request to move to Belgium, and the reasons for the request, were not taken seriously. He further alleged that he was told informally on the telephone on 13 October 2020 that he could move to Belgium and was told repeatedly, even after he raised that he was requesting to move to Brussels temporarily as a workplace accommodation on the basis of disability, that his stay there would be considered non-essential travel. He stated that this was despite HR having discretion on the matter and, under the same (non-exhaustive) definition of essential travel, he had been allowed to go to London in July 2020 to pick up his possessions to complete his move to Ireland without being forced to forego annual leave because that trip had been deemed to be essential.

He stated that in December 2020 he was summarily, unilaterally and repeatedly ordered to return to Ireland permanently despite having expressed serious concerns about the extreme isolation he would experience upon his return at the time and the severe effects that such isolation would have on his mental health.

He further alleged that on 23 December 2020, after he had tried to defend himself from being forced back into a situation of social isolation that he claimed would have had extremely detrimental effects on his health, the Head of Human Resources attempted to coerce him into returning, threatening him with disciplinary action on undisclosed grounds. He stated that he explained to the Head of Human Resources that forcing him to return would be extremely detrimental to his health and further alleged that she disclosed his diagnosis of autism spectrum disorder / asperger syndrome to the Head of Unit/Principal Officer without his consent and against his clearly expressed wishes, by copying her into the email reply to him. He alleged that he had disclosed the diagnosis to the Head of Human Resources expressly on the understanding that it would be kept confidential.

He stated that he also disclosed his diagnosis to Anne-Marie Clancy, his line manager, on the telephone during the first week of December. He asserted that felt forced to do this in order to illustrate and emphasise his particular circumstances, and why he was so worried about the health consequences of returning during a period of severe restrictions on social contact.

On 16 December 2020, when the Complainant was in Brussels, there was an in-person team meeting lasting approximately two hours, which the Complainant participated in via zoom. He stated that he did not travel to Ireland for this meeting, citing concerns about potentially infecting vulnerable family members with COVID-19, as well as logistical issues, such as the possibility of flight cancellations and being stranded away from his family at Christmas. He stated that he was pressured into attending this meeting. He also alleged that the need for him to obtain a new work laptop was used to put further pressure on him to come to Ireland. He further alleged that his failure to attend the meeting on 16 December 2020 was highlighted as one of the “primary concerns” in the document that purported to be a record of his 6 month probation review. He stated that his refusal to travel for this meeting was held against him and was used as part of the justification for trying to terminate his employment.

As the Complainant was engaged by the Respondent during the first four months of the pandemic, and in the context of the restrictions and guidance then prevailing, he commenced his position remotely. In July 2020, he requested and was granted permission to travel to London in order to pick up his possessions so that he could complete his move to Ireland.

On 12 October 2020, the Complainant wrote to both the Head of Human Resources and his immediate line manager and sought permission to return to his family home in Brussels and to work remotely from there because of the social isolation he was experiencing in Ireland. The Complainant also requested that his return to Belgium be treated as essential travel so he did not have to take two weeks off work when he eventually returned to Dublin. On 13 October, in light of the distress reported by the Complainant, his request was approved and he was permitted to work from his family home in Brussels on a compassionate basis. The request for compassionate treatment was also extended on the basis that he would make himself available for work at the Respondent’s offices in Dublin when the Covid restrictions eased.

From early November during divisional meetings, the Principal Officer made all of the staff in her division, including the Complainant, aware that the intention was to meet in person in Dublin in December at a date to be determined. On 1 December 2020, during a remote meeting, the Principal Officer, informed the attendees that the team would be meeting in the office in mid-December to hold a brainstorming session for the coming year. The Complainant’s reaction to this was very negative and he raised his voice at the meeting and made disparaging comments about HR.  

Following the meeting of 1 December 2020, the Complainant emailed his line manager and asked for a meeting to discuss the divisional meeting. During the remote meeting, his line manager admonished the Complainant for his conduct during the earlier meeting and advised him that the content of his interruption should not have been discussed at the divisional meeting. The Complainant advised his line manager that he had logistical concerns regarding any return to work in Dublin in mid-December due to the Government mandated rules regarding isolated periods for people entering Ireland. His line manager advised the Complainant that any return would comply with civil service guidelines and asked the Complainant to contact HR about any concerns he had around returning to the office. The Complainant then informed his line manager that he had a disability which impacted his return to the office. Upon learning of this, his line manager asked the Complainant if he had informed HR of the disability because this was the first she had heard of it and he informed her that he had.

Later on 1 December, the Principal Officer sent an email to the division asking staff to advise her if there were any dates that didn’t suit to attend the aforementioned meeting or if they would rather not attend the office. On 4 December all staff in the division received an email asking them to return their laptops so they could receive a Windows 10 upgrade, which had to take place in the office on 17 December 2020. On 7 December, the Complainant’s line manager called him to ask if he had contacted HR as they had discussed on 1 December. The Complainant stated that he had not done so and proceeded to reiterate his logistical concerns about returning to the office. In the circumstances, his line manager asked him to put his concerns in writing to her and asked him once again to contact HR. On 8 December, the Complainant wrote to his line manager outlining his perceived logistical issues in respect of a return to the office in December and stated that both his GP as well as his psychiatrist recommended that he should remain in his family home in Brussels until the Covid situation improved. On 9 December, the line manager had another meeting with the Complainant during which she again asked if he had engaged with HR. The Complainant advised that he had not and would not be doing so. He also informed his line manager that he had been diagnosed with Asperger’s syndrome in May 2020 and told her, when questioned, that he had disclosed the disability when he joined the Respondent. On both occasions, namely 1 and 9 December, when he spoke to the line manager, the Complainant’s disability was advanced as the secondary reasons for his reluctance to attend the office with the primary reason being logistical matters.

On 10 December, the IT team emailed the Complainant to advise that he was scheduled to meet with them to collect a new laptop. When he subsequently contacted his line manager to inform her that he could not attend the office to do so, she advised him to let the IT team know and request an alternative time slot in January.

On 11 December, the Complainant contacted the HR department and requested a Workplace Accommodations Form, which was provided to him on 14 December. On 16 December, HR wrote to the Complainant to advise him that he should be available to attend the office when required from 11 January 2021. The Complainant subsequently informed his line manager on 17 December that he had a difficulty with attending the office when required from 11 January 2021 and that he would raise it with HR. His line manager highlighted the importance of him doing so and stated that she needed clarity on the position. The Complainant subsequently contacted the Head of HR later that day and informed her of his disability. He also outlined the impact of returning to Ireland would have on him and stated that it was “extremely unlikely that there will be a meaningful return to actually working in the office in the short-term”.

The Head of HR replied to him on 23 December and stated that if the Complainant was fit for work and had a declared disability, he should engage with his managers and HR to see how he could be supported. She also confirmed that the Complainant’s request to work temporarily from Belgium would be extended a third time to 18 January 2021 and waived the requirement for the Complainant to take annual leave to cover the period of isolation in his return to Ireland.

On 6 January 2021, the Complainant responded to the email of 23 December 2020 from the Head of Human Resources and stated that he would not return to Dublin on 18 January 2021 and sent a follow up email on 8 July with a Workplace Accommodations form which was accompanied by a letter from his psychiatrist dated 7 January 2021. Further to this the Head of Human Resources wrote to the Complainant on 19 January to confirm that his request to work from Brussels temporarily had been extended and approved on an exceptional basis due to the changing covid 19 restrictions. The Complainant continued to work from Belgium until his resignation on 23 July 2021.

THE LAW

Section 16(3) of the Act states:

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.

( c ) In determining whether the measures would impose such a burden account shall be taken, in particular, of —

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer ’ s business, and

(iii) the possibility of obtaining public funding or other assistance. ]

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;

Under section 14 (7) (a) (i) of the Employment Equality Act 1998 as amended, harassment is defined as:

“any form of unwanted conduct related to any of the discriminatory grounds...being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.  Section 14(7)(b) further defines Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“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.”

FINDINGS

The effect of s.85A above 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.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the Complainant to show that, based on the primary facts, he has been discriminated against because of her disability. 

The Respondent, referred to the explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, which addresses the onerous nature of the burden of proof:

“This requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Reasonable Accommodation

I note in the first instance that on 13 October 2020 the Respondent allowed the Complainant to work in Brussels, when Level 5 restrictions were in place, at the Complainant’s request. I also noted the Complainant’s assertion, in his email of 12 October making this request, that he would return “without delay” if he was “needed in the office in Dublin at any point”

I further noted that the Complainant had not requested any accommodations on the grounds of his disability prior to 1 December 2020 when a request was made of him, and of all his colleagues in the unit, to return to the office in Dublin on various occasions in December 2020. Moreover, I noted that, when the request was made on 1 December for the Complainant to attend the office in Dublin, the Respondent was not on notice of the Complainant’s disability.

Inmaking a finding that there was no discrimination in the case of A Worker v An Employer EDA 1927 the Labour Court highlighted that the Respondent was “not provided with any medical evidence that the Complainant had a disability” and that the Respondent “could not have been expected to accept the Complainant’s assertions in the absence of medical evidence”. In the instant case, the Complainant did not provide any medical evidence of his disability until 7 January 2021 when he furnished a letter from his psychiatrist. I further noted both that the Complainant never had to return to Ireland prior to his resignation in July 2021 and there were no further accommodations requested by him after the medical evidence of his disability was provided on 7 January 2021.

In light of all of the foregoing, I find that the Complainant has not established a prima facie case in respect of this aspect of his complaint.

Harassment

The Complainant asserted that he was harassed as a result of the Respondent’s repeated requests of him to attend the office in Dublin in December 2020 for an in-person meeting and to collect a new laptop.

I note firstly that all of the staff in the division were asked to attend the office in Dublin for the in- person meeting as well as to collect a laptop and that the Complainant cannot suggest that he was treated less favourably as a result of these requests.  As highlighted above, I also noted that the Complainant stated in an email on 12 October 2020 that he would return “without delay” if he was “needed in the office in Dublin at any point”

I also do not accept that the email from the Head of Human Resources of 23 December 2020, which was copied to the Principal Officer in charge of the division, constitutes harassment as alleged by the Complainant. The correspondence, in my view, was a legitimate request from her seeking medical evidence that could assist the Respondent in supporting the Complainant, which the Principal Officer, in her capacity as head of division where the Complainant worked, had every right and entitlement to be aware of. This is because the Principal Officer would have had to be aware of the implementation of any reasonable accommodation, if same were deemed to be necessary.

Finally, and crucially, there was no evidence whatsoever presented to suggest that any of the alleged harassment was in any way related to the Complainant’s disability.

In light of all of the foregoing, I find that the Complainant has not established a prima facie case in respect of this aspect of his complaint.

As the Complainant has not established a prima facie case in respect of either his allegation that the Respondent failed to afford him reasonable accommodation or that he was harassed because he had a disability, I find that he was not discriminated against.