ADJ-00035410

Complainant

Respondent

Anonymised Parties

An Employee

A Provider of renewable energy systems

Representatives

Bebhinn Murphy B.L. instructed by  Butler O'Hanrahan Lally D'Alton LLP

Michael Devitt BL instructed by Kieran Quigley & Co. 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-00046513-002 & CA-00046514-002

04/10/2021

The Complainant referred claims to the Director General of the WRC under the Employment Equality Acts, 1998 as amended on 4th of October 2021.  

These matters were previously heard by another Adjudicator on 10th of August 2022 and a decision issued in that regard.   The Adjudicator found that the complainant had named the incorrect respondent to her claims and a finding was made against the complainant on the preliminary point.   

The complainant appealed those Decisions to the Labour Court that Court's Determination of 26th of April 2023 overturned the decisions in respect of the preliminary point and determined that the within respondent was the complainant’s employer and the correct respondent to these claims. 

The Labour Court remitted the complaints back to the WRC for hearing on the substantive matters by a different adjudicator.   

The complainant submits that she was discriminated against on grounds of disability in respect of her dismissal and that the respondent failed to provide her with reasonable accommodation for that disability. 

The respondent submits that the Claimant was dismissed for gross misconduct specifically due to her open consumption of alcohol in the workplace, drinking during the workday and for being drunk in the workplace.

It is submitted that

the Complainant is suffering from a complex mental health profile being a combination of anxiety and depression.    The Complainant submits that she does not suffer from alcoholism.

The Complainant submits that the Respondent was directly on notice of her disability as she submits that she was open about her mental health difficulties and had required time off from work on occasions for periods of time ranging from a few hours (to 'walk off' a panic attack), to one or two days, or up to two weeks.

In the event that the Respondents deny such notice, it is submitted that they had ‘constructive notice’ of same where they were under a duty to enquire and where such enquiry would have clearly shown the Respondents the evidence of the Complainant's disability which they deny.  In Somers v. WI Henchy J stated:

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

It is submitted that the Complainant has a history of mental health difficulties. She continues under the supervision of both her general practitioner and the HSE Mental Health Services team overseen by Dr A.   It is submitted that the Complainant has a diagnosis of mixed anxiety and depression for which she is prescribed medication namely Xanax (alprazolam) and Quetiapine (also known by its brand name Seroquel).

It is submitted that in October 2020 a close female friend of the complainant died by suicide which had a significantly negative impact on the Complainant's mental health. As a result of same, the Complainant's anxiety symptoms were such that she requested time off from her work in November 2020.

The Complainant submits that she made this request to Mr. L and that she informed him of the specific issue and that she needed time off.  Mr L asked the Complainant how much time she required to take off and she replied one or two weeks.   It is submitted that this period of leave taken for mental health reasons was granted to the Complainant.

It is submitted that from November 2020, the Complainant's medication dosages changed and in particular the dosage of Quetiapine was doubled from 12.5mg to 25mg daily in an attempt the control the Complainant's anxiety and specifically panic attacks. The Complainant was also prescribed Xanax (alprazolam) and Prozac (fluoxetine) at this time in order to deal with depression and panic attacks.

The Complainant submits that she was open with her colleagues in relation to her mental health and she frequently discussed different medications or dosage changes which were being trialled in order to manage her complex symptomology.    The Complainant submits that that Mr. L, Mr R and Ms W of the respondent were all aware of her mental health profile.

The Complainant submits that she was struggling with the effects of the doubled dosage of Quetiapine in December 2020 into early January 2021 and that she experienced side effects including extreme tiredness and on review by her general practitioner, Dr G, she dropped back to 12.5mg per day  and was advised to take this medication at night

It is submitted that by the end of February and into early March 2021, the Complainant recommenced having panic attacks including panic attacks in the middle of the night and was advised to go back to 25mg consistently and to change the time of intake to the afternoon in an attempt to manage night-time panic attacks.

It is submitted that the Complainant was also advised to change her intake routine in relation to Prozac from 20mg twice a day to a 40mg dosage once a day in the morning. The Complainant submits that she consulted with her medical advisors in relation to the level of drowsiness and tiredness she experienced at this higher dosage of Quetiapine, but she was advised to persist with the dosage plan. The Complainant submits that she found this very difficult due to the side effects.

It is submitted that the Complainant's mental health deteriorated again throughout May and June of 2021, and she was experiencing severe panic attacks which required her to take time off work for two to three days at a time. The Complainant submits that she was again advised by her medical advisors to take Quetiapine consistently in the afternoon.

It is submitted that on Tuesday 8 June 2021, when the Complainant went to work, her colleagues commented that she looked pale and unwell and enquired after her. The Complainant at the time  put it down to working late.   The Complainant specifically recalls talking to her colleague Ms N and her partner in the car park about this that day.

It is submitted that on Wednesday 9 June 2021, the Complainant recalls that she felt terrible and had severe gastrointestinal symptoms, so she went for a walk to try to clear her head and submits that she informed her team colleague of this.

It is further submitted that the Complainant then went to a nearby shop where she bought and consumed some dry biscuits and coffee. The Complainant submits that her heart was still pounding, and she could not calm down so when she went on her lunch break, she took her recommended dosage of 25mg Quetiapine.

It is submitted that as the Complainant was driving back to work after lunch at approximately 2.45pm, on 9 June 2021 she was overwhelmed with drowsiness and felt terrible, and for safety she pulled the car over near to her workplace.  She submits that after doing this Ms. W pulled up beside her car and enquired after her. The Complainant reassured Ms. W that she was fine and made her way back into work.

That afternoon Mr. L called in to the office to see the Complainant and to enquire as to what was going on as Ms. W had reported to him that the Complainant was sleepy.    The Complainant when asked advised Mr L that she had had an argument with her spouse, and she wasn't feeling great.   Later that evening at home the Complainant and her spouse consumed alcohol. The Complainant does not habitually consume alcohol mid-week but did so on this occasion in an attempt to calm her anxious state.

It is submitted that on Thursday 10 June 2021 the Complainant felt even worse and took a taxi into work due to her safety concerns around driving due to the effects of the medication. She recalls that at around 10.30am, she was sitting on a bench near the local shop and Mr L passed her in his car and beeped.  

It is submitted that the Complainant purchased alcohol that day from the nearby shop.     It is submitted that the complainant does not recall purchasing alcohol, but she has been told that this by her husband, and she later checked with the shopkeeper who confirmed same.

The Complainant recalls asking Ms. W to give her a lift home that day, but Ms. W could not assist at that time, and so the Complainant then phoned her spouse who did collect her, brought her home and put her to bed.

On Friday 11 June 2021, the Complainant went to work and at approximately 10.30am Mr L came into the Complainant's office and said that he needed to speak with her immediately. He asked her 'what the fuck went on yesterday?'.   It is submitted that the Complainant tried to explain the situation vis-å-vis her medications and that Mr L told her that 'one of the lads saw you at the green' he also added that she had been seen with alcohol in a bag outside the Euro spar shop.   

Mr L then told the Complainant to get her handbag and go home. Mr L told the Complainant to take two weeks off.    She asked him if he wanted her to finish off the grant application forms, she had to complete that day. Mr L told her no, to go home.

It is submitted that in the following days, the Complainant tried to contact Mr L by email and text to ascertain when she should return to work. When she phoned him on 18 June 2021, Mr L told the Complainant that she no longer had a job.

Sometime later, the Complainant requested a letter confirming her status and the reasons for her dismissal so she could furnish same in support of her application to the Department of Social he-phoned Mr L again to request same and particularly for an explanation for her dismissal.

The complaint submits that she was not informed that she was suspended on 11th June 2021 or on any date nor explained the conditions of any suspension; she was not invited to an investigation meeting; she was not invited to make a statement in relation to any matter; she was not invited to a disciplinary hearing; she did not receive notification of her dismissal until a verbal communication of same on 18 June 2021, and by letter dated 21 June 2021 (received by her on 28 June 2021) both of which were initiated by her and on her specific request; she was not notified of her right of appeal; she was not invited to an appeal hearing.

It is submitted that the Complainant was subjected to a discriminatory dismissal on the basis of her disability and that the respondent failed to provide her with reasonable accommodation for that disability.

The respondent submits that the Claimant was dismissed for gross misconduct specifically due to her  open consumption of alcohol in the workplace, drinking during the workday and for being drunk in the workplace.

The Respondent submits that the dismissal of the claimant resulted wholly from her own conduct.  

It is submitted that on 19 March 2021, Ms W, a co-worker of the Claimant, received a phone call from the Claimant, and a further phone call from a third party, both stating that the Claimant was in the office.    Ms W subsequently went to the office and found the Claimant in a state of drunkenness and bearing a strong smell of alcohol.   The Claimant, at that point, complained of marital difficulties with her husband.

On the same date, Ms W contacted the husband of the Claimant who informed Ms W that he had arrived at the office at 2.00pm that day to find the Claimant consuming alcohol inside the office.   He stated that he confiscated the alcohol from the Claimant, as well as the keys to a company van which she had been given permission to borrow from time to time.

It is submitted that the Claimant was brought to a nearby shop by a third party to purchase food. Shortly afterwards, the Claimant arrived back at the office. She had brought with her cans of Heineken beer and a bottle of gin.   The Claimant then proceeded to consume the said alcohol in the office in sight of her co-workers.    Ms W and a third party convinced the Claimant to leave and transported her to her home that afternoon.

It is submitted that on 9 June 2021, at approximately 3.30pm, Ms W was returning to the workplace from a work-related delivery when she happened upon the Claimant’s car. The Claimant was found asleep inside the car.   The Claimant was due to be working that day but had left the office earlier that day for a number of hours without explanation or authorisation.

The Claimant proceeded to exit her vehicle, at which point Ms W noticed a strong odour of alcohol and that the Claimant appeared to be intoxicated. The Claimant spoke with Ms W and stated that she had been engaging in arguments with her husband.

It was later discovered that the Claimant had left work at 12.30pm on that date, without informing management.    She was then found, some three hours later, in an intoxicated condition in her car.

Ms W informed the Manager, Mr L of the incident.     Mr L attended the office at 4.30pm, to find that the Claimant had returned.    He noted that she was slurring her speech and laughing loudly while on the phone to clients.   When Mr. L asked how she was the Claimant informed Mr L that she had been arguing with her husband.

It is submitted that on 10 June 2021, Mr L arrived at the office at 3.30pm and found that the Claimant was not there.   For the avoidance of doubt, the Claimant was due to be at work for the full day that day.    Mr. L was informed by Ms W that the Claimant had been seen leaving a shop in a neighbouring area that afternoon in a state of intoxication whilst carrying a bag of alcoholic beverages.  

 The Claimant did not return to the office that afternoon. She had not notified the office that she was leaving, nor was she entitled to leave the office for such a length of time.

 It is submitted that on Friday 11 June 2021, Mr L attended the office at approximately 9.15am.  The Claimant had not appeared at work. Mr L was informed that it was a commonplace occurrence that the Claimant would disappear for three-to-four-hour periods during the working day. The Claimant did not arrive at the office until approximately 11.15am that day.

The Claimant has grounded her claim under Section 77 of the Employment Equality Act 1998 and has claimed that she was discriminated against on grounds of disability.   The respondent submits that it was not aware of or on notice of any disability at the time of the complainant’s dismissal. 

It is noted that the claimant has not claimed that she suffers from alcoholism.

It is submitted that the Claimant was dismissed for the open consumption of alcohol in the workplace, drinking during the workday and for being drunk in the workplace. The reason for the dismissal was therefore utterly unrelated, separate, and distinct from any grounds of discrimination.

It is submitted that such actions, by any reasonable standard, constitute gross misconduct. It is the firm contention of the Respondent that this does not give rise to any prima facie case of discrimination. The Claimant must establish such a prima facie case before any other matter is considered by the Workplace Relations Commission and it is the firm position of the Respondent that the Claimant has not done so.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. 

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. 

The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v Valpeters EDA0917 where it held that Section 85A: 

"…. provides for the allocation of the probative burden in cases within its ambit. 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 speculation 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”.

There must be fact of “sufficient significance” to raise a presumption of discrimination. It is not sufficient to simply be a member of a protected group to render acts discriminatory, if for example no comparator exists or can be inferred, or the acts are transparently attributable to a non-discriminatory cause.

In Margetts v Graham Anthony & Company Limited EDA038, the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:

““The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such an inference can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  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.”

Section 6(1) of the Act provides that discrimination shall be taken to occur where “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) ...”.

Section 6(2)(g) of the Act defines the discriminatory ground of disability as follows – “as between any 2 persons, ... that one is a person with a disability and the other either is not or is a person with a different disability".

The definition of disability in Section 2(1) of the Act is as follows:

“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 Complainant submits that she suffers from a complex mental health profile being a combination of anxiety and depression.    The Complainant submits that she does not suffer from alcoholism.   

Both parties at the hearing agreed that the complainant was dismissed from her employment.    The respondent submits that the complainant was dismissed for gross misconduct specifically due to open consumption of alcohol in the workplace, drinking during the workday and for being drunk in the workplace.    The complainant submits that her dismissal amounts to a discriminatory dismissal on grounds of disability and a failure by the respondent to provide her with reasonable accommodation for such disability.

The complainant when asked at the hearing whether she suffered from alcoholism stated that she did not and advised the hearing that her disability related to complex mental health issues specifically Generalised Anxiety Disorder.   The complainant in support of this provided a doctor’s letter specifying that she has a diagnosis of ‘mixed anxiety and depression’ and is being treated with medication for same.   This letter is dated 14 October 2021.   The complainant provided another letter (with some redactions) from a medical practice dated 19 May 2022 which details a number of medications which it is submitted the complainant was prescribed.   The complainant in her own evidence to the hearing stated that she does not suffer from alcoholism.   Accordingly, I am satisfied that the complainant for the purpose of her claim is submitting that she suffered from mental health issues and has a diagnosis of ‘mixed anxiety and depression’, and I am satisfied that this is the disability on which she is seeking to ground her complaint. 

The Respondent contends, that it was not on notice of the Complainant’s disability prior to, or at the time of her dismissal which took place on 18 June 2021.   I note that both letters presented to the hearing by the complainant in support of her diagnosis, are dated after the date of dismissal. 

The complainant when asked when she had notified the respondent of her disability stated that she could not give an exact date but referred to discussions with colleagues in 2017 when she had worked in a call centre in a related company in which the respondent director Mr. L was also involved.   The complainant advised the hearing that this organisation had downsized and that she and a number of her colleagues at the time had moved jobs to work for a telecom company and that she had remained there for about a year and a half before returning to work for the respondent in a related new company.    The complainant stated that it was around this time that her mental health issues were discussed with colleagues, but she could not give an exact date.  

The complainant went on to state that during her employment with the respondent which commenced in February 2019 she had asked for time off due to her mental health issues and that she was always granted same.  She stated that she had asked Ms. W for time off and that Ms. W had been very good.  The complainant went on to state that she had provided sick notes in this regard.  

The complainant advised the hearing that her mental health had deteriorated in May and June 2020 and stated that she had gone to her doctor at the time and had been advised to take a complete break from family life. 

The complainant advised the hearing that she had then gone to Lanzarote with a friend for two weeks in June 2020.  The complainant stated she had to take time off work to do this from 11th of June to 24th of June and submits that a doctor’s letter or cert would have been given to Mr. L at the time in order for her to get the time off approved.    Mr. L denied ever receiving or having knowledge of any such letter.    Mr. L stated that as far as he was concerned the time off was annual leave and was marked as such in the work calendar.    The complainant when questioned about the letter/cert stated that she had given this letter to Ms. B who no longer works for the respondent but who was at the time in a HR role in the company.  The respondent advised the hearing that Ms. B was no longer employed by them at that time as she had left prior to that date.    The complainant then stated that she had been mistaken and she may instead have given her sick cert to Ms W.   Ms. W denied having received this cert or letter from the complainant. Ms. W advised the hearing that the only sick note she had received from the complainant had related to a shoulder problem.

 Witness for the respondent Mr. L advised the hearing that he had at the time (in June 2020) been advised that the complainant was going on holidays to Galway and that he only found out later that she had in fact gone to Spain.  Mr. L added that this was relevant at the time as this trip was taken by the complainant during the pandemic at a time when travel restrictions were in place and quarantine requirements imposed for those who travelled abroad.   The respondent added that the complainant should by right have quarantined for a week after coming back from Spain but that he had not even been aware that she had been out of the country until after she had returned to work.

The complainant advised the hearing that she had at the time been provided with a letter from her doctor giving her permission to go on a flight as it was during covid, and travel restrictions were in place.   It is not clear form the complainant’s evidence whether this letter was in addition to the letter stating that she needed two weeks off work.

The complainant submits that she had during her employment submitted sick certs to the respondent in respect of her mental health issues.  Witness for the respondent Mr. L advised the hearing that he had not seen or received any sick certs for the complainant.  The complainant when asked stated that she had given the certs to Ms. B or Ms. W.    Ms. B was not in attendance at the hearing as she had left the respondent’s employment.    Ms. W advised the hearing that the only sick note she had received from the complainant had related to a shoulder problem.

The complainant advised the hearing that another example related to a period in October/November 2020 when she had taken time off work after a friend of hers had died by suicide, the complainant advised the hearing that she had needed this time off due to mental health issues following the death of her friend.  The complainant advised the hearing that she had a conversation with Mr. L after the death of her friend and that she had told him that she would need some time off and that Mr L had told her to take two weeks off.  The complainant submits that this conversation amounts to notification of her disability. 

Mr. L advised the hearing that a conversation did take place and that he was aware that the complainant’s friend had died by suicide and that she needed time off after this had happened.   Mr L stated that he was aware that the complainant was grieving after the death of her friend, and she had said she would need some time off.   Mr. L told the hearing that he asked the complainant how much time off she needed to which she replied to a week or two.   Mr. L stated that he understood she was grieving but that there was no mention of the complainant having mental health difficulties and that no sick cert specifying mental health issues had been submitted.

It is submitted on behalf of the complainant that even if the respondent had not been on notice of a disability, it was on constructive notice of a disability and should have made appropriate enquiries after it became aware that the complainant had been under the influence of alcohol while at work on more than one occasion. 

In considering the issue of whether or not the respondent was on notice of a disability I note the submissions of both sides in respect of the incident on 9th of June 2021 in which Mr. L asserts that the complainant was under the influence of alcohol while at work which the complainant denies.   Mr. L submit that the complainant was slurring and laughing loudly whole on the phone to clients which he attributes to her having been under the influence of alcohol.  

    He stated that he asked if she was okay, and the complainant replied that she had had an argument with her husband the night before.   Mr. L stated that this was the explanation given by the complainant for her behaviour and added that he could not see how having an argument with her husband would lead to the complainant slurring her words.    Mr. L stated that this was the only explanation given by the complainant for her behaviour on that day.  The complainant in her evidence agreed that Mr. L had asked her if she was okay and that she had answered him as outlined stating that she had had an argument with her husband.  

However, the complainant has since claimed that her behaviour on the day in question was due to her having taken a higher dose of her medication which caused drowsiness and slurring and submits that this could have been mistaken for drunkenness.

Witness for the respondent Ms. W advised the hearing that she had earlier that day on the 9th of June happened upon the complainant asleep in her car at the side of the road and that the complainant when Ms. W alerted her had got out of her car and sat on the kerb.   Ms. W stated that there was a smell of alcohol from the complainant, and it appeared to her that the complainant had been drinking.     Ms. W added that this was not the first time the complainant had been drinking at work and recounted an incident from March where the complainant had produced a bottle of gin and some cans of alcohol and proceeded to drink them in the workplace.     Ms. W stated that she had tried to stop the complainant at the time stating that she would get herself fired and had eventually persuaded the complainant to go home.  The complainant at the hearing did not deny that this happened but stated that it was after work hours and so she was not doing anything wrong she stated that it happened about 6.15pm but later stated that it was about 5.30pm again outside of work hours.

The respondent advised the hearing that it was only when he questioned staff member Ms. W about the complainant’s behaviour on 9th of June that he was told about the March incident, and he was also told that there were other occasions where the complainant had been absent from work for long periods of time during work hours and had consumed alcohol while at work.   Ms. W in her evidence stated that she had not mentioned the March incident to Mr. L but then when the complainant appeared to be under the influence of alcohol while at work on 9th of June Ms. W stated that she panicked and felt she had to tell Mr. L about the previous incident.

It is argued on behalf of the complainant that the knowledge that the complainant had been under the influence of alcohol while at work is constructive knowledge of a disability.  In considering this argument I note that the complainant denies that she suffers from alcoholism and so the argument being advance is that the respondent was on constructive knowledge of the complainant’s mental health disability by virtue of the fact that they were aware that she had come to work under the influence of alcohol and also that she had consumed alcohol while at work.

The complainant advised the hearing that she had not consumed alcohol on the 9th of June during the working day but that she had taken the wrong combination of medication in the middle of the day which had left her groggy and appearing to be under the influence of alcohol.

I note that the explanation given by the complainant at that time was that she had had an argument with her husband.    

The complainant when asked whether the respondent was aware of her mental health difficulties stated that everyone knew.   When asked for details as to how everyone knew the complainant referred to work colleagues whom she stated she had advised that she suffered from mental health issues.  Moreover, she asserted that her sick absences placed the Respondent on notice of her disability.  The complainant submits that the respondent if not on notice of her disability had constructive knowledge of the existence of a disability.

In considering the matter of notification of a disability I note that valuable guidance as to what is required in the context of an employee not disclosing his or her disability is provided by Advocate General Sharpston in her opinion in Case C-270/16, Ruiz Conejero v Ferroser Servicios Auxiliares. In her opinion, the Advocate General found that the obligation to provide reasonable accommodation was only triggered “where the employee has told his employer of his disability and its extent, together with all relevant surrounding circumstances”. 

The Labour Court has also confirmed that, before an employer can be answerable for disability discrimination, it must have actual or constructive knowledge that the employee was disabled.

In Swan O’Sullivan v Counihan (EDA10/2018), an employee claimed to have been discriminated against on the grounds of disability.  The employee had not informed his employer of his disability.  The Labour Court rejected his claim after establishing that the employee had failed to produce medical certificates when requested to do so by his employer.  The Court held “… before an employer can be answerable for disability discrimination against an employee, the employer must have actual or constructive knowledge that the employee was a disabled person”.

I note from the evidence adduced that the complainant has sought to assert that the respondent was aware that she suffered from a disability and that the disability in question is anxiety and depression I also not that the complainant claims that she was dismissed on grounds of that disability and that the respondent failed to provide her with reasonable accommodation for such disability.

 I note that the respondent claims that it was not on notice of a disability and that the complainant did not at any time submit sick notes or doctors’ letters in support of her assertion that she had notified the respondent.   The respondents’ witnesses deny that they received any such sick notes or letters, and the complainant could not provide copies of any such the notes as she stated she had provided them to the respondent. 

In considering whether or not the respondent was on notice of a disability I note that the evidence of both parties in respect of the incident of 9th June 2021 was that the complainant when asked by Mr. L if she was ok replied that she had had an argument with her husband.   I note that arguments with her husband and being tired after working late were cited by the complainant as reasons for her being upset at various times when asked by work colleagues. 

I also note her assertion that she went to Lanzarote in June 2020 as her doctor advised her to take a complete break from family life.   I note that both parties are in agreement that arguments with her husband were cited by the complainant as reasons for her being upset when asked by work colleagues and I note that she did not make reference to mental health issues or medication for same on these occasions.  

It was also argued on behalf of the complainant that the respondent did not follow proper procedures in respect of the complainant’s termination of employment and while I acknowledge that this would be an issue requiring further consideration and  investigation in an Unfair Dismissal claim this is a claim of discriminatory dismissal on grounds of disability and the complainant at the outset withdrew her Unfair dismissal claim choosing instead to pursue a claim of discriminatory dismissal.   So, if the argument being made is that procedures were not followed this is not a matter for consideration under the current claim of discriminatory dismissal as it is stands.

Having carefully considered the written and oral submissions and evidence in relation to this matter, I do not accept that the Respondent was on notice of a disability. I, therefore, find that the Complainant has failed to establish a prima facie case of discrimination on the grounds of disability contrary to Section 8 of the Acts and that the respondent has not failed in an obligation to provide her with reasonable accommodation for that disability.

I am satisfied from the totality of the evidence adduced that the complainant was not discriminated against by the respondent on grounds of her disability in respect of her dismissal.  I am also satisfied that the complainant was not discriminated against by the respondent in respect of a failure to provide her with reasonable accommodation for her disability.