Complainant

Respondent

Anonymised Parties

A Language Teacher

An Educational Institution

Representatives

 Rory Treaner B.L. instructed by Crushell & Co

William Wall,  Peninsula Group

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-00056278-001

25/04/2023

The complaint is one of Discriminatory Dismissal on the grounds of disability. At the request of the complainant and having regard to the sensitive nature of references to the complainant’s health and medical conditions, I have decided to anonymise the Decision.

The complainant is from Brazil and has a Diploma in Languages and Brazilian Literature, as well as a Masters in Dispute Resolution. She started her career in 2014, as a Portuguese and Literature Teacher and has worked as an English Language teacher until she relocated to Ireland. She began her employment with the respondent on December 20th, 2022 and her employment was terminated on March 10th,  2023. She was paid €21 per hour.

The complainant has raised a complaint seeking adjudication by the WRC under section 77 of the Employment Equality Act, 1998.

 Section 2 (1) of the Employment Equality Acts defines disability.

“disability”means—

(a)  thetotalorpartialabsenceofaperson'sbodilyormentalfunctions,includingthe absenceofapartofaperson'sbody,

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

(c)  themalfunction,malformationordisfigurementofapartofaperson'sbody,

(d)   aconditionormalfunctionwhichresultsinapersonlearningdifferentlyfromaperson without the condition or malfunction, or

(e)  a condition, illness or disease which affects a person's thought processes, perception of reality,emotionsorjudgementorwhichresultsindisturbedbehaviour, and shall be taken to include a disability which exists at present, or which previously existed butnolongerexists,orwhichmayexistinthefutureorwhichisimputedtoaperson.

The complainant has a disability within the meaning of the Act of which the respondent was aware. Premenstrual dysphoric disorder (PMDD) is a severe form of premenstrual syndrome (PMS) that causes physical and emotionalsymptomseverymenstrualcycleintheweekortwobeforemenstruation.

It affects up to 10% of women of reproductive age. Symptoms vary by individual and may include bloating, headaches, breast tenderness, anger, anxiety, panic attacks, depression, difficulty concentrating, fatigue, low energy, food cravings, headaches, insomnia, and mood swings.

Untreated PMDD can lead to depression and, in severe cases, suicide, negatively affecting relationships and careers. Healthcare providers may recommend various treatments and there are also natural treatments.

The complainant maintains that the respondent was aware of her disability but opted to dismiss her instead of offering any reasonable accommodation.

Section 16 of the Acts requires an employer to “do what is reasonable to accommodate the needs of a person who had a disability by providing special treatment or facilities”.  The Labour Court has made it clear that the mandatory primary duty on the employer under Section 16(3)(b) is that he or she shall take appropriate measures to enable a disabled person to participate and advance in employment unless these measures would impose a disproportionate burden.

The question that provokes apprehension for employers is the lengths they must go to in order to comply with the responsibilities placed on them by the Equality legislation in relation to reasonable accommodation.

In Nano Nagle School v Marie Daly [2015] IEHC 785, the judge noted that the definition of “appropriate measures” in reasonable accommodation of a disability includes the adaption of both patterns of work time and distribution of tasks. In An Executive v A University [2020] ADJ – 00022851, the adjudicator referred to paragraph 84 of the Nano Nagle decision which provided for the following:

“ifapersonwithadisabilitycanbereasonablyaccommodated,theyaretobedeemedas capableofperformingthejobasiftheyhadnodisability;subjecttotheconditionthat reasonable accommodation should not impose a disproportionate burden on the employer;includinganassessmentofthefinancialandothercostsinvolved,thescaleandfinancial resourcesoftheemployer,andthepossibilityofobtainingpublicfundingorother assistance. Buts.16(3)(b) explicitly identifies the mandatory primary dutyof an employer.

He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, andtoundergotraining,unlessthesemeasureswouldimposeadisproportionateburden. Section16(4)thengoesontoidentifywhatappropriatemeasuresshouldbetaken. Althoughthedefinitionissomewhatrepetitiveandcircular,whatisidentifiedareeffective and practical measures, where needed in a particular place, to adapt the employer’s placeofbusiness,includingthepremises,equipment,patternsofworkingtime,anddistribution oftasks,ortheprovisionoftrainingorintegrationresources.”

There is no evidence, whatsoever, that any reasonable accommodation was afforded to the complainant. Since the decision of the Supreme Court in Nano Nagle School v Daly it is now clear that while there is no statutory duty on an employer to consult with the employee concerned, in the course of its consideration, the Supreme Court did point out that as a matter of prudence such consultation should occur.

In A Store -and- A Worker EDA1629 the Labour Court found held:

“As was pointed out by this Court in Humphries v Westwood Fitness Club and in A Worker v An Employer [2005] ELR 159 a failure to adequately consider all available options on how a disabledpersoncanbeaccommodatedcanamounttoafailuretodischargethe dutyto providereasonableaccommodation.Thosecasesalsoindicatethatanenquiryinthat regardcanonlyberegardedasadequateiftheaffectedemployeeisaffordedan opportunitytoinfluencethedecisionthattheemployerultimatelymakes.”

Despitebeingawareofthedisabilityofthecomplainant,noconsultationoccurred. Anemployerisunderadutytotakeappropriatemedicaladvicebefore takingadecisiontodismissanemployee.

InMcCroryScaffoldingLtdvAWorker EED055 itwasestablishedthatassumptionsofahealthandsafetynaturetowards employees with a disability without the benefit of receiving or assessing the medical evidenceconstitutesdiscriminationongroundsofdisability.

InASchoolvAWorkerEDA 1413,theLabourCourtdeterminedthattheprovisionofspecialtreatmentandfacilitiesis not itself sufficient and more favourable treatment can be provided to an employee with a disability.

In A Worker v An Employer 2005 16 ELR 159, it was held that a proper and adequate assessment has to be made of a situation of an employee with a disability before decisions are taken which may be to the detriment of the employee. There is no record of the respondent having taken such advice.

In summary, the complainant contends that while her schedule for December was busy due to the fact, she was writing a dissertation she let her manager (Main Director) know that she could cover a few classes to facilitate time off for the other teachers.

December 19th, 2022 was the complainant’s induction day, which she attended. The following day, December 20th, (the complainant’s first day of employment), she was suffering from a cold. Her PMDD, which is known to exacerbate the common cold. She was in the luteal phase when she contracted the cold which caused her to become very ill and due to this she took the day off work.

The complainant attempted to go to work the next day but was still suffering from the cold, which had since advanced, with symptoms such as a sore throat and a fever. Due to this she took the rest of the week off (20 December 2022 – 01 January 2023). The complainant returned to work on January 2nd  2023.

She requested a day off on January 31st as she had a doctor’s appointment to have a procedure to address her symptoms. Following this, she had to take the following day off work to rest (February 1st). It is common to experience severe pain and cramping after the procedure in question. She returned to work on February 2nd.

On this day she was called to her manager’s office and in the course of that conversation and because she trusted him, she revealed her medical condition. He asked whether it would be a frequent occurrence, ‘Because you mess up our schedulewhenyoutakedaysoff”.

She replied stated she could not confirm this, as PPMD is a cyclical illness.

On the evening of February 9th, she started having severe symptoms and went to A &E. She let her manager know that she would not be able to work the following day (February 10th).

On February 24th, 2023, she again experienced severe symptoms and asked her manager for emergency cover as she was unable to stay in the classroom. By 3:15pm, cover was provided, and she went home.

She took the entire following week off (27 February 2023 – 04 March 2023), per medical instructions, as she was experiencing “unbearable” physical side effects from the earlier procedure and on February 27th, 2023, she disclosed her medical condition (PPMD) for a second time, this time to Ms. B, via WhatsApp message.

On March 3rd, 2023, Her manager called the complainant and said, “I have bad news. Although you are a brilliant teacher, I will have to let you go. You have been working with us since January and have taken two weeks off. We need someone who is here. And I am saying it as advice for your future employment because you are a really brilliant teacher and your students love you.”

She told her manager that he was discriminating against her, as instead of offering her options such as emergency cover, he was firing her. Her manager denied that it was discrimination and reminded the complainant that she was still on her probation period.

After the phone call, Her manager texted her saying that he was giving her one weeks’ notice from Monday March 13th, 2023. After this, she ceased all contact and did not fulfil her notice period. The next day she received an email from her manager, stating that it was unfortunate that she did not work her notice period and that she would be paid up until March 10th,  2023.

The complainant give her evidence on affirmation. She confirmed the narrative about her arrival in Ireland and employment with the respondent and also described her PMDD diagnosis and symptoms. These were mainly chronic migraine and fatigue in the ten days before menstruation and could also include digestive problems bloating etc.

She also outlined various treatments that she underwent although she said that she did not share all of these with the respondent. She could not recall precisely when she told the respondent of the condition but she thought it was around the first week in February 2023.

She also said that she sent information to the respondent on her condition on February the 26th 2023 but she got no response to this and the material and that that she sent was never discussed with her. She said that she complied with all of the respondents sick leave requirements and felt that the respondent was comfortable with her absences.

She gave evidence of receiving the phone call from Mr. A terminating her employment. It lasted four to six minutes and in the course of it he told her she was a brilliant teacher but that he could not rely on her.

She told him this was discrimination and she referred to a text message received on March 3rd stating that she would be expected to work her one week's notice.  The termination of unemployment had a very adverse impact on her including precipitating suicidal thoughts.

In response to questions from the respondent she confirmed that none of the medical certificates specifically referred to the nature of her condition.

She also said that she did not share any of her medical information regarding her diagnosis with the respondent. She was asked to again detail her symptoms which she said were varied, and noted that she was also undergoing treatment at the time.

This concluded her evidence.

In summing up, the complainant stated that provision of reasonable accommodation is not relevant to this complaint as it is a complaint of discriminatory dismissal.

The facts are that there was a disability, the complainant experienced a detriment on account of it and this gives rise to a ‘but for’ causality. The respondent must have known of the link to the complainant‘s disability.

Notwithstanding the provisions of Section 16 of the Act a process is still required.

The respondent is a private educational establishment and offers a range of educational programmes. The complainant attended a teacher induction on December 16th, 2022, and on the 19th (the day she started), she called in sick due to cold and flu symptoms.

The following day she arrived for work and on the 21st, she called in sick and advised that she would be out sick for the rest of that week.

The school closed for the Christmas period and re-opened on January 3rd, 2023. The complainant attended for work and on every day until January 25th, when she advised that due to cramps, she would not attend work the following day. She advised that she was very unwell and was attending a doctor’s surgery the following Tuesday January 31st, 2023.

She advised that a doctor’s certificate would follow covering the days of absence.

On January 31st, the complainant said that she had a medical procedure that day and that she would not return to work until the 2nd of February 2023 which she duly did. She submitted two doctors’ certificates both dated February 1st, 2023, relating to different dates. They both refer to ‘medical illness.’ The certificates read – “this is to certify in my opinion that the above-named patient is suffering from medical illness and is unable to attend work”.

One certificate refers to January 26th to February 27th, 2023. The other certificate refers to January 31st  to February 1st,  2023. On February 2nd, the complainant returned to work.

Her manager (Mr. A) met with her on her return to work. The meeting was to ensure the complainant had recovered following her recent absence. At the at meeting, Mr. A advised that it was not required that she divulge the nature of her medical condition. Nonetheless, she volunteered that she had Pre-Menstrual Dysphoria Disorder (PMDD) and he did not enquire any further.

The complainant on this occasion mentioned to Mr. A that her condition occurred maybe twice a year.

On February 9th, the complainant texted Mr. A and said she would not be attending work the following day as her GP had referred her to hospital following pelvic pain and cramps.  On February 13th, the complainant returned to work.

On February 24th the complainant had told a colleague that she was unwell and was returning home. She also told her the nature of her condition; PMDD. On February 26th, the complainant texted that colleague to say she would not be attending work the following day and attached a link to a web site explaining the effects of PMDD and how employers should deal with it.

On February 27th, the complainant failed to arrive for work. She was to cover for another teacher in the mornings.

She was sent a text message enquiring as to whether she would be attending work the next day. She replied that she could come in the following afternoon, February 28th, but instead she texted to say she would not be in work that afternoon.

The complainant had annual leave booked off for the first two days of March and was due back to work on the Friday March 3rd.

A text message was sent to her on March 2nd  asking if she would be attending for work the following day.  The complainant advised that she had a doctor’s note for the week and would return to work the following Monday. On March 3rd the complainant texted Mr. A to say that she would not be attending work that day due to sickness.

Following a department meeting a decision was taken to terminate her contract of employment, as she was not capable of performing her duties as set out in her contract of employment. It was noted at the meeting that the complainant was still within her probationary period.

Mr. A disputed the message from the complainant in which she said that the school was ‘firing her’ due to her medical condition. This was not true. She was advised of her notice period.

On March 6th  the complainant failed to appear for work to work her notice period.

The following day Mr. A sent an email saying that it was a pity the complainant never showed up for work. The complainant was paid her notice period and accrued annual leave entitlements.

The complainant argues that she had informed her employer of her disability on February 2nd and 26th.

The respondent notes that the only doctor’s certificate’s applying to the period of employment set out that the complainant had ‘a medical illness’. There was no mention of PMDD. While the complainant mentioned it, she did not submit medical evidence that she indeed had PMDD. Nor is there any mention of medical procedures within those certificates.

The complainant contends that she was dismissed without being offered any reasonable accommodation. In this case, section 16(1)(b) requires the complaint to be available to carry out her role. Moreover, it also requires the complainant to be capable to carry out the role. In accordance with s.16(3) An employer is only required to provide reasonable accommodation where the employee is available, competent, and fully capable of carrying out the role.

On the following days the complainant was neither capable nor available to carry out her role. The respondent says there was no possibility of affording the complainant reasonable accommodation due to her unavailability.

•      19th December 2022 out sick with cold and flu

•      21st December 2022 and remainder of the week out sick

•      26th January 2023 cramps and diarrhoea.

•      Did not return until the 2nd of February.

•      9th & 10th February 2023 – pelvic pain

•      24th February 2023 – left work due to sickness

•      27th & 28th of February 2023.

Section 28 of the Act also requires that the complainant point to a comparator in which she intends to rely on in that she was treated less favourably than another person with a different disability or a person with no disability. She has not done so to date.

The witness, ‘Mr. A’ gave evidence on affirmation.

He stated that he was the Academic Manager at the respondent and he had concerns about the pattern of the complainant’s attendance. On February 2nd, on her return to work, he asked to see her and told her that he did not need to know the nature of her illness but she nonetheless told him what it was. She also told him that she was undergoing treatment.

She told him that the symptoms were cyclical and could occur possibly twice a year and, on this basis, having inquired earlier whether she might discuss the situation with HR, she said that she felt no reason to involve HR. (The witness confirmed that there was no ‘in house’ HR resource).

There was no further reference to her specific condition again despite later conversations with her. She never referred to it again.

After the final week of her absence and having regard to the frequency of previous absence the witness had a conversation with his manager following which it was decided to terminate the complainant’s employment.

There was no discussion at that stage about her condition and the witness said that had he been aware of it he would have acted differently. He said that he had every sympathy with mental health challenges arising from his personal experience.

He had discussed it with his manager on a previous occasion and he was made aware that other employees had similar condition but on the basis of what he knew he thought no action was required.

Under cross examination the witness accepted that he was aware of the complainant’s diagnosis but that she was dismissed for her absences. When it was put to him that these were due to the PMDD, he disagreed saying that the medical certificates did not specify the nature of the complainants illness nor did they make any request for reasonable accommodation.

This concluded his evidence on affirmation.

The respondent submits that the complainant has not made a prima facie case of discrimination.

The Respondent refers to the case of Melbury Developments v Arturs Valpetters EDA0917in which the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a 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 it be of sufficient significance to raise a presumption of discrimination. However, it must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn …… the burden of establishing the primary facts lay fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule”.

On this matter the respondent also refers to Southern Health Board v Mitchell, DEE011, [2001] ELR 201where the Court stated:

“The first requirement is that the complainant 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 complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.”

The respondent refers to the case of Margetts v Graham Anthony & Company Limited, EDA038, where the Court noted as follows:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

In Galway Mayo Institute of Technology -v- Vlad Teleanca EDA 1835, the Court stated that this “Mitchell Test” was comprised of the following three steps.

1.       “It is for the complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the complainant fails to do so he or she cannot succeed.

2.       If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3.       If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent”

In any event, the respondent would submit that no medical evidence was presented by the claimant to the effect that he suffered from a disability until the disciplinary meeting was held. In that respect, the respondent would refer to A Worker -v- A Food Manufacturer (DEC-E2010-187)where the Equality Tribunal rejected a claim for disability discrimination on the basis that:

“ … no evidence whatsoever, either in the form of meaningful medical reports from relevant specialists, or the complainant’s GP, was adduced to prove that the complainant is disabled within the meaning of the Acts. The only documentation the complainant provided was an appointment with a consultant and a generic letter from the hospital to advise him how to prepare for his stay. The only other medical-related evidence submitted came from the respondent and consists of non-descript sickness certificates. However, I find that these are not numerous enough to infer the existence of a disability simply from their existence.”

The respondent also refers to the case of Employer – v – Worker ADE/19/11where a worker claimed to have been dismissed because of his disability. The Court noted in its decision that:-

“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”. (Emphasis added)

The respondent simply could not have dismissed the complainant on the grounds of a disability because they were never made aware through medical records of any issue that could amount to a disability.

While the complainant told the respondent on two occasions that she suffered from PMDD; she provided no medical evidence of a diagnosis. The respondent submits that had they have been put on proper notice of her condition, they were not in a position to provide adequate measures as the complainant was neither available nor capable of carrying out her role.

In conclusion, the respondent submits that the complainant has not set out a prima facie case of discrimination and that it has not dismissed the complainant on the basis of her disability.The reasons for her dismissal in her probationary period was that she was not capable or available to perform her contract of employment.

Section 16 of the Act is specific in that a worker must be available and must be capable.

The issue of reasonable accommodation does not arise due to the un-availability of the complainant.

The facts of the case are well set out in the narratives of both parties and are largely common to both.

This is a case of discriminatory dismissal. While much of the complainant’s written submission referred to reasonable accommodation and the various authorities on that subject, that was not identified as the main issue at the hearing.

The following appears, for example, early in the complainant’s submission above.

The complainant maintains that the respondent was aware of her disability but optedtodismiss herinsteadofofferinganyreasonableaccommodations.

Section 16 of theActs requires an employer to “do what is reasonable to accommodate the needs of a person who had a disability by providing special treatment or facilities”.  Here, the Court made it clear that the mandatory primary duty on the employer under Section 16(3)(b) is that he or she shall take appropriate measures to enable a  disabled person to participate and advance in employment unless these measures would impose a disproportionate burden.

There is further extensive reference to the Nano Nagle case and to the various requirements set out in that case as to what accommodation may be required and the steps that may be needed to identify them.

However, it is far from clear that the application of the reasonable accommodation principles has any relevance to this complaint, not least because the complainant never sought any such accommodation.

If, by reasonable accommodation, she actually means that there should have been some greater tolerance for her absences, that is a different matter entirely, but not one which falls within the reasonable accommodation framework.

Also, as noted by the respondent, the law requires that an employee be competent to carry out their role with the addition of whatever accommodation may be helpful to her to facilitate this, but given the complainant’s pattern of absence this could not arise.

In any event counsel for the complainant clarified at the hearing that consideration of reasonable accommodation was not relevant as the complaint is one of discriminatory dismissal and that is a helpful distinction to make.

He also crystallised the case on the basis of the ‘but for’ causal relationship between the disability, the respondent’s awareness of the disability and the detriment to her; the termination of employment.

The evidence above confirms that the respondent was made aware of the complainant’s medical condition at the meeting with Mr. A on February 2nd. Subsequently, on February 26th the complainant submitted further information to another person in the management in the form of a link to a guide for employers (from ACAS).

So, on the one hand the respondent was made generally aware of the complainant’s health condition.  But, on the other hand, her medical certificates made no reference to the specific reason she was absent from work.

While this may be entirely proper and arise from doctor-patient confidentiality, and/or the employee/patient’s right to privacy, the complainant’s case is built on the somewhat speculative argument that the respondent ought to have connected what it had been told on February 2nd and 26th to the reason for her absences (including those which occurred before the first notification, and these were significant enough).

Also, the information stated by Mr. A to have been given to him by the complainant on February 2nd, 2023, suggested that the more severe symptoms associated with her condition might occur only a couple of times a year. There was no indication to him (or indeed to anyone) that she was experiencing any more exceptional symptoms at that time than normal.

Her position during this time was, according to her evidence, exacerbated by the nature of the treatment she was undergoing (and of course this sequence could have been one of the ‘couple of times’ per year in which the symptoms manifested as severe).

However, the respondent says it was not given any information as to the procedure she was undergoing or its impact (even in the most general terms) and no reference to it occurred on the medical certification which only referred to her (somewhat unusually) as having a ‘medical illness’.

For that reason, much of the case law relied on by the complainant is not relevant insofar as it relates to consultation about a known disability (A Store v A Worker, McCrory Scaffolding, A School v A Worker and A Worker v An Employer, above).

Given the facts established in evidence, I propose instead to follow the decision referred to above in A Worker -v- A Food Manufacturer (DEC-E2010-187)in which the Equality Tribunal rejected a claim for disability discrimination on the basis that:

“… no evidence whatsoever, either in the form of meaningful medical reports from relevant specialists, or the complainant’s GP, was adduced to prove that the complainant is disabled within the meaning of the Acts. The only documentation the complainant provided was an appointment with a consultant and a generic letter from the hospital to advise him how to prepare for his stay. The only other medical-related evidence submitted came from the respondent and consists of non-descript sickness certificates. However, I find that these are not numerous enough to infer the existence of a disability simply from their existence.”

The respondent also refers to the same principle of what information an employer had of a complainant’s health status in the case of Employer  v –Worker ADE/19/11where (in reference to a claim for reasonable accommodation) The Labour Court noted in its decision that:-

“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”.

The complainant’s case that the respondent ought to have divined a relationship between her absences and what she had communicated about her symptoms is altogether too much of a stretch and places demands on an employer which are not well based in law. I do not accept either that in this case the complainant’s disability was ‘self-evident’.

In this regard, I attach particular weight to the evidence of Mr. A who was unequivocal and persuasive in stating that had he known of the complainant’s condition he ‘would have acted differently’, while noting that the respondent was aware of other employees with the same diagnosis as the complainant.

I therefore accept fully that the only consideration in deciding on termination was the pattern of absence which was only described in very general terms on the medical certificates and not linked to her disability.  The complainant took no further steps either to connect the two.

For these reasons the complainant has not made out a good case that the respondent was aware of her disability and so it follows that the termination of her employment was not related to her disability. I find that the respondent acted in good faith on the basis of her poor attendance record in the course of her probation.

The complaint is not well founded.

For the reasons set out above Complaint CA-56278-001 is not well founded.

Disability, Dismissal.