Complainant

Respondent

Anonymised Parties

An employee

An employer

Representatives

  Self-Represented

Internal Employee Relations

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-00055384-002

28/02/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses for the respondent gave their evidence under affirmation.  The parties were invited to cross examine the witnesses.

The complainant has a hidden disability that falls within the definition contained in the Act, the existence of which was not denied by the respondent. Accordingly, the decision is anonymous.

The complainant indicated in the complaint form that she was pursuing a claim under the Equal Status Act, however, it was obvious from the narrative in the form that she was an employee and the complaint related to discrimination in the workplace.  Accordingly, the matter was dealt with as an Employment Equality complaint.  The respondent was aware of all of this information from the outset and was not disadvantaged by so treating the matter.

The complainant submitted that she was discriminated against when she was not provided with reasonable accommodation for her dyslexia.

In her evidence she confirmed that she never asked for reasonable accommodation and never told the employer that she was unable to carry out her role in the absence of reasonable accommodation. She never indicated to the employer what sort of reasonable accommodation she was seeking but simply maintained that the employer should provide reasonable accommodation.

The respondent submitted that before commencing employment, the complainant was referred to an occupational specialist for assessment. The occupational specialist was aware of the existence of the disability and certified the complainant as fit to work and noted that no restrictions were applicable in relation to her role.

The witness for the respondent who was the nursing practise coordinator noted that she had a meeting with the complainant. The complainant outlined her disability to her and noted the areas of work that she had difficulty with. The witness outlined how she implemented suite of reasonable accommodation measures that were put in place to assist the complainant. She noted that her role is to implement good and safe practices in the workplace.

The witness noted that the complainant came looking for assistance and it was offered. She noted that some of the accommodations were put in place on a trial basis, as each person is different and so other accommodations may have been sought after the trial basis. The witness noted that she had sight of an educational psychologist’s report and noted that the accommodations in place went beyond what was contained in that report. The witness noted that another member of staff acted as a mentor for the complainant and that although she was referred for an occupational therapy assessment, the occupational therapist came back to say that the accommodations already provided were sufficient.

There was no cross examination of the witness.

The complainant submitted that no reasonable accommodation was put in place, but confirmed that  she neither sought reasonable accommodation nor was she unable to do her job in the absence of any accommodation. Is appears to be the case that the complainant seeking that the employer guess what sort of accommodations she might need on the basis of a diagnosis of a disability.

On the other hand, the respondents witness outlined how the complainant had sought reasonable accommodation and was provided with various measures to assist her in fulfilling her role. It was noted that the respondent’s occupational therapist found her fit to do the role before she commenced, and during her employment upon referral, another occupational therapy specialist found that the accommodations being provided with were sufficient in respect with the named disability.

Section 85A(1) of the Act is concerned with burden of proof and states as follows:

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.

On the basis of the foregoing, I am not satisfied that the complainant has established facts from which discrimination may be inferred. She related an account of her employment that was at odds with that outlined by the respondents witness which was supported by the occupational therapy document that was signed off before the complainant took up her position. This oral evidence was not challenged on any level by the complainant.

On the basis of the foregoing, I find that the complainant was provided with reasonable accommodation and was not discriminated against.

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complainant was not discriminated against.

Employment Equality Act – burden of proof – no facts established – provided reasonable accommodation - not discriminated against.