Complainant

Respondent

Parties

Oisín Gourley

Mason Hayes & Curran LLP

Representatives

John Cleary, SIPTU

 Rosemary Mallon BL

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-00060270-002

28/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00060270-003

28/11/2023

The Complainant was employed as a senior associate solicitor by the Respondent from 13 March 2023 until 17 August 2023.  The Complainant did not pass his probation and his employment with the Respondent was terminated.

The Complainant has submitted the following complaints under the Employment Equality Act 1998, as amended: (i) discriminatory dismissal on the grounds of disability; (ii) failure by the Respondent to provide him with reasonable accommodation; (iii) victimisation and (iii) harassment.

The Complainant has also submitted a complaint under the Minimum Notice & Terms of Employment Act, 1973 alleging that he was not paid one week’s notice.

The Respondent refutes all the complaints in their entirety.

The Complainant submits as follows:   

On 13 March 2023, the Complainant started working at the Respondent.  The Complainant was employed in the Public Regulatory and Investigations team, but the Complainant worked only for one client investigating complaints of fitness to practise at the inquiry stage.

The Complainant had about three days of induction and thereafter was given around 13 files, 3 of which were new instructions and the rest had been ongoing for a while and had been worked on by several other employees.

In April 2023, the Complainant told a partner in the Respondent organisation that he had long COVID which caused him breathing and fatigue issues. A few weeks later, in a room behind his desk the Complainant told Catherine Allen (partner) that he had long COVID and that this caused him fatigue issues. The Complainant stated that it limited his social activities at the weekends but that he did not think it affected his ability to do his job.  

After a couple of months, the Complainant got the feeling that the job was not going as well as he had hoped. He was experiencing a lot of fatigue; he was taking too long to review information; it felt like the information was not being retained nor processed; he was anxious about making mistakes and about the quality of his work; he felt like he was procrastinating; he was feeling overwhelmed and was slower at completing tasks; he felt de-motivated and lacking direction. As a result, his confidence was adversely impacted.  He did not feel like he was making progress with the files.  The Complainant had difficulty sleeping. This was exacerbating the Complainant’s symptoms of anxiety and affecting his performance. It also making the Complainant’s fatigue worse. These symptoms also affected him in everyday life in that the Complainant would be irritable, slow at doing day-to-day things, easily distracted and with low mood.    

The Respondent’s team’s policy of insisting on that all requests for information or assistance were made in writing added to the Complainant’s negative feelings. He was working remotely both physically and emotionally and the Complainant found he was missing interaction with colleagues and clients. The Complainant’s working style has always been to take instructions and communicate verbally and confirm it in writing, which he finds is a more effective way of working. 

In June 2023, around the Complainant’s mid-probation interview, Ms Allen explained that there were issues with the Complainant’s performance, particularly the description of work done, and time spent on cases. Ms Allen mentioned that there would be a meeting in mid-July with the Client. Ms Allen also mentioned there would be another probationary review before the six months were up.  The Complainant told Ms Allen that he had been feeling anxious and was having difficulty sleeping. Ms Allen’s response was that she was sorry to hear that.  

Towards the end of June 2023, issues were raised with the Complainant’s performance in that he was taking too long to progress some cases. It is submitted that the Complainant had only been working on these cases for around 3 months when they had been barely progressed for many months or even years before his appointment.

Ms Allen and the Complainant had regular weekly remote meetings or “catch-ups.” These were usually on a Monday afternoon.  In early July 2023, the Complainant informed Ms Allen over a remote catch-up meeting of his mental health issues and the impact on his performance. The Complainant stated that he was feeling overwhelmed, disorganised, and taking too long to complete tasks. He also stated that he had had issues with his mental health in the past, that he had visited his GP for treatment, which the Complainant described as a positive step. Ms. Allen said she was glad to hear that he was getting the help he needed. This was towards the end of the meeting and there was no further discussion at that point.

On 24 July 2023, the Complainant attended the Client’s offices along with other legal firms for the rollout of their mental health programme.  The Complainant understood that while the programme was aimed primarily at participants in fitness to practice proceedings, it also covered practitioners such as the Complainant.

On 9 August 2023, the Complainant received an email from Ms Allen stating that a representative from HR would be attending their weekly catch-up meeting, the purpose of which was to discuss the Complainant’s performance and feedback from the Client.

The Complainant then called Ms Allen (as the Complainant was working from home). The Complainant asked if he could be dismissed at the meeting. Ms Allen said she wanted to discuss that with the Complainant. The Complainant stated that he wanted to involve his trade union. Ms Allen said that a decision had not been made nor did the emails between the Complainant and Ms Allen indicate that the meeting on 10 August would be a complete waste of his time, which the Complainants considers it was. The Complainant now considers Ms Allen’s responses to him to be misleading and/or of giving him a false sense that reasonable accommodation would be discussed. At the time the Complainant felt reasonable accommodation would be discussed otherwise he probably would not have bothered to disclose his very personal health issues nor travel down to Dublin.

Ms Allen and the Complainant then exchanged emails about the Complainant’s health, and he asked for reasonable accommodation. The Complainant believed that given the exchanges, that reasonable accommodation would be discussed at the meeting on the following day, and he was not informed otherwise.  The Complainant provided a patient summary print out and test results regarding his long COVID so that the Respondent had some understanding of his disabilities.

The Complainant submits that, in her replies, Ms Allen provided an inaccurate account of previous discussions with the Complainant. Ms Allen stated that the firm’s policy was to consider reasonable accommodations when they are aware of them. The Respondent has never provided the Complainant with a copy of his relevant policies and simply refused to do so without any reason.

During the meeting on 10 August 2023 the Complainant was told that he had not passed his probation and would be given one weeks’ notice. The reasons provided for not passing probation were: (i) the outcome of the Ms Allen’s discussion with the Client on 19 July 2023; (ii) that the Complainant had a different approach to his work colleagues; (iii) that the Client did not want him to take over a departing colleague’s cases; (iv) that the Complainant was “using calls a lot” and (v) the impact on the Complainant’s ways of working on his work colleagues. The Complainant then asked if reasonable accommodation would be discussed but this was refused by Ms Allen. The Complainant asked whether it could be discussed with the Client, in light of his health issues and the impact it was having on him particularly, as they were actively promoting their mental health programme. He also asked if he could be redeployed.  The Complainant also said he had been slow to appreciate the impact of his ill health. The Complainant was told by Ms Allen that the decision to dismiss him had been made. 

On 11 August 2023, the Complainant raised a grievance against the Respondent with a summary of events and alleging disability discrimination.  The Complainant also asked the Respondent to consider his grievance as an appeal against his dismissal. The Complainant asked that his trade union representative could be in attendance at a proposed meeting to discuss this.  The Complainant also stated that the Respondent had not sought any engagement with him regarding the impact and duration of his long COVID and/or mental health.  The Complainant further stated that he was awaiting a further discussion with his GP in relation to reasonable accommodation. 

On 14 August 2023, the Respondent provided the Complainant with written notice of his dismissal (the effective date of termination was 17 August 2023). The Respondent did not pay the Complainant’s full notice in lieu despite saying it would.  The Complainant considers the Respondent’s refusal to pay to be part of a conduct of harassment and victimisation.  The Complaint submits that the Respondent’s letter provided an inaccurate account of the timeline and of the Complainant’s discussions with Ms Allen.  

The Complainant was very dejected and upset when he received that letter on 14 August 2023 due to its inaccuracies, and because it was clear that the Respondent had rejected his grievance and already determined the issues. The Complainant took this as an attempt to try to dissuade him from exercising his employment rights. The Complainant found it hard to concentrate on much other than the dismissal and that letter. His sleep was impacted, and he felt he really could not be bothered to do anything.  

On 15 August 2023, and after raising his grievance, the Complainant informed the Respondent that he did not accept its account and the Complainant requested its grievance policy as well as its policies relating to supporting employees with a disability.  

On 18 August 2023, the Complainant appealed his dismissal. On 25 August 2023, the Complainant forwarded a letter from his GP stating that he had depression and anxiety and post-COVID symptoms. 

On 25 August the Respondent informed the Complainant that the Head of Litigation would hear the grievance. 

On 29 August 2023, Complainant also complained about the delay in hearing the grievance and requested the Respondent’s relevant policies.  The Complainant notified the Respondent that he wanted to be accompanied by his trade union representative.  

On 30 August 2023, the Respondent responded claiming it did not have any relevant policies (other than its grievance policy) and/or pleading ignorance as to the nature of the Complainant’s request. 

On 31 August 2023, the Complainant complained about the delay with the grievance hearing and queried the Respondent’s position with regards to its relevant policies. The Complainant again explained why his trade union representative should be allowed to attend. On 1 September 2023, the Respondent refused to permit the Complainant’s trade union representative’s attendance. 

On 13 September 2023, the Respondent and the Complainant exchanged emails. In those exchanges, the Respondent asked if the Complainant could attend its premises on 14 September 2023 and once again asked if the Complainant would bring one of its employees in place of his trade union representative. In the Complainant’s replies, he asked for his full pay in lieu of notice and he suggested that the meeting take place remotely. The Respondent refused these requests. The Complainant confirmed that he would attend in-person.  

On 14 September 2023, the Complainant emailed the Respondent. The Complainant reiterated why he wanted his trade union representative to attend. The Complainant also set out other incidents which he considered to be acts of discrimination. 

On 20 September 2023, the Complainant visited the Respondent’s offices. The Complainant’s train was delayed, and the Complainant emailed the Respondent the twice to say he was running late and to provide a revised estimated time of his arrival.  The Respondent replied to both emails and did not object.  

The Complainant attended the Respondent’s offices at around 11am. He went up to the sixth floor where the meeting was scheduled. There was a man on the sixth-floor reception, so he agreed to call the Head of Litigation to let him know the Complainant was there. The Complainant also contacted a representative from HR to let her know he had arrived. The Complainant then overheard that man’s conversations and the Head of Litigation talking angrily about him.   The Complainant heard the Head of Litigation through the phone line say “No, I am not meeting him”. At that point the other person walked away up the corridor. He then returned and said, “I have let [the Head of Litigation] know you are here”. 

Shortly after, a representative from HR came out and told the Complainant that the Head of Litigation had been called away and he could not meet him. The representative from HR said that she had tried to call him but could not get through. The Complainant had no record of this on his phone and could not understand why she didn’t just email him like before. When the Complainant asked, the representative from HR told him the meeting was scheduled for an hour. The Complainant then suggested that Head of Litigation could have spent the last 20 minutes of the hour meeting him and the rest remotely. The representative from HR said that the meeting had to be in person, she did not say why that was so. The Complainant replied that the Respondent could decide the grievance on paper. As he was getting into the lift, the Complainant then asked the representative from HR what the reason the Head of Litigation was could not meet him. The representative from HR replied that she could not answer why the Head of Litigation refused to meet him.  

On 11 October 2023, the Complainant complained to the Respondent about incidents which he considered to be acts of discrimination i.e. the misleading and inaccurate responses, overhearing the Head of Litigation talk angrily about him, the Head of Litigation refusing to meet him and the conflicting provision of information from the representative from HR, as well the continued refusal to allow the Complainant’s trade union representative’s attendance.   

On 16 October 2023, the Respondent responded to the allegations the Complainant made about the 10 August meeting and his attendance in the office on 12 September 2023. The Complainant responded disputing the Respondent’s account.   

A number of the practices or policies of the Respondent have adversely impacted on the Complainant, such as only conducting a grievance in person and/or without his trade union; not seeking engagement with him around his health; only considering reasonable accommodations if requested; insisting on written communications; attempting to delay or frustrate the process and attempting to dissuade him post-dismissal and pleading ignorance or simply refusing to accede to of his requests for information. 

The Complainant wrote to the Respondent on 22 January 2024 with a completed EE.2 form requesting information in relation to his treatment as under the Act. The Respondent undertook to respond by the end of February but did not do so.

On 5 and 11 March 2024, the Complainant again wrote to the Respondent seeking a response to his EE.2 form request, but he did not receive any communication from the Respondent.

LEGAL CONSIDERATIONS

Long COVID is a disability

It is submitted that the Complainant’s diagnosed illnesses of long COVID-19 and depression/anxiety are disabilities within the meaning of the Act. Long COVID has been accepted as being capable of being a disability in UK case under more restrictive definition of disability under the equivalent Act. In Burke v Turning Point Scotland, the Employment Tribunal determined that an employee could bring a claim for disability discrimination against his employer. The Tribunal held that Mr Burke’s long COVID, which included symptoms such as fatigue, headaches, an inability to concentrate and difficulty sleeping, qualified as a disability. This was despite a lack of medical evidence and that his condition had not yet lasted for 12 months or longer, as the Tribunal found that it was likely to last for 12 months.

Discriminatory treatment of the Complainant

The Complainant submits that his treatment by the Respondent, as outlined above, is capable of meeting the definition of discrimination under the Act, in that the Complainant was discriminated against on the ground of disability by the Respondent treating the Complainant less favourably than a person with no disability or a different disability primarily by its failure to assess how the Complainant could reasonably be accommodated based on his specific mental health disabilities (depression/anxiety and long COVID) and its discriminatory dismissal of him, preventing his access to and advancement in employment but also in the other numerous acts that he has complained of post dismissal.

Respondent on notice of disability

By letter, HR on behalf of the Respondent confirmed that the Complainant disclosed his long COVID diagnosis “earlier that year”. The Complainant disputes this and asserts he did in fact notify Ms Allen about his long COVID in April 2023 and that he informed Ms Allen of his anxiety in June 2023, his depression on or about early July 2023 as well as in email of 9 August 2023 and subsequently at their meeting on 10 August 2023.  The Complainant had himself reported specific symptoms he was suffering regarding his mental health to Ms Allen during their conversation in early July 2023.

In Ms Allen’s email 9 August 2023, she stated:

“This is the first time I am being made aware that you have depression. You mentioned that you had a condition previously and were attending your doctor but provided no other information nor asked for any accommodations to be made.” 

The Complainant asserts that this is a reference by Ms Allen to the meeting in July 2023 and that therefore Ms Allen does not deny the Complainant mentioned his health to her in the July 2023 meeting.  However, if that is the case, the Complainant asserts that Ms Allen’s description of the July 2023 meeting to be implausible. 

The Complainant submits that, by the Respondent’s own account, it was aware the Complainant was suffering from a disability (long COVID) and depression prior to his dismissal (the Respondent accepts that they were aware on 9 August 2023 which was before the decision was communicated to the Complainant on 10 August 2023 and confirmed in writing on 14 August 2023. The Complainant further submits that the Respondent was on notice that the illness from which the Complainant suffered can cause and actually was causing him to suffer from symptoms that impaired his ability to do his job. 

Respondent’s claimed reasons for dismissal

The Respondent asserts that the Complainant had been hired to work for one client only, and that when this Client became unhappy with the Complainant’s work, that they had no choice but to dismiss him. Even if that were the case, at the point of dismissal the Respondent had various vacancies (and still does) for employment solicitors. As of 1 August 2023, the Respondent was advertising for 20 positions in different teams for qualified solicitors at associate and senior associate level. Employment law is an area of law that the Complainant had practiced in for 12 years in England, Wales and Northern Ireland.  The Complainant submits that the Respondent should not have dismissed him but put him through a redeployment process, given its assertion that it was the Client who was the main reason for the Complainant’s dismissal.  The Respondent should also have discussed the Complainant’s disability with the Client.  The Complainant submits that the Respondent’s refusal to take such steps deprived the Complainant of the opportunity to see what difference such reasonable accommodations would have made, whether on a short-term or longer-term basis. 

The Complainant submits that there is no evidence to support the assertion that the Complainant could only have been employed to work with just one client. The job description in the Complainant's contract contains the words: 

•                     “Provision of legal advice and assistance to clients”

•                     “Clients and colleagues satisfied with advice provided, with processing of matter and with outcome of case;” (this phrase appears twice in two separate sections)

•                     ”own client base developed”

Indeed the only place where the word “client” appears in the singular is in this last phrase which implies it was a fundamental part of Complainant’s role, indeed it was his responsibility, to have more than one client. If it was the Respondent’s intention to employ the Complainant to work for just one client, it had the opportunity to make this clear in either his contract or job description but did not do so.

The second part of the Respondent’s justification for its dismissal of the Complainant was that the Complainant’s sole client had become unhappy with his work and that therefore his position was untenable.

The Respondent has not provided any evidence of this unhappiness, save a single email from the Client in or around June 2023, which was shown to the Complainant which complained of late responses. The Complainant submits that the email was written as a gentle warning rather than indicating any serious concern or rupture of relationship. Ms Allen and the Complainant agreed a way forward and, as far as the Complainant was aware, this placated the Client and is supported by the Respondent’s letter 14 August 2023 referencing an improvement to the delay.  The Complainant subsequently sought notes of emails, conversations and meetings with the Client concerning his performance as part of his EE2 request form.  The Respondent undertook to respond to his email by the end of February but failed to do so. The Complainant asserts that such documentation should be provided to assist the Workplace Relations Commission exercise its quasi-judicial functions and ask that the Adjudication Officer draw what inferences they deem appropriate under the Act from the Respondent’s failure to respond to the EE2 form. 

In the absence of this evidence, there is nothing to suggest that Ms Allen made the Client aware of the fact that the Complainant was suffering from a disability, and that this may have been impairing his work. Ms Allen was aware of the claimed importance that mental health, including the mental health of practitioners, was placed on by the Client from their seminar on 24 July 2023. There was ample evidence from this event that the Client would have been sympathetic, even “compassionate” towards the Complainant’s difficulties had they been made aware of them.

The Respondent, when coming to a decision to dismiss, was not entitled to ignore the fact that they were dismissing a person who suffered from a disability, and given the nature of the disability, at least consider whether the faults they found with the Complainant’s performance could be connected to it.

Further, having communicated its decision to dismiss, the Respondent had every opportunity to reconsider its decision during the appeal and grievance process that the Complainant engaged in, where he explicitly sought reasonable accommodation for his disability. 

Not only did the Respondent not do so, it subjected the Complainant to a humiliating and unfair grievance process as described above. While at the start of his employment the Respondent was happy to interview Complainant for his role remotely, it insisted on an in-person meeting to hear his grievance, rejecting his explicit request to be allowed to attend remotely, or even to resolve it on the papers. As Complainant could clearly overhear, the partner appointed to hear his grievance was loudly and clearly furious with Complainant, and the Respondent blatantly refused to undertake its responsibilities to afford the Complainant natural justice, fair procedures, and not to subject him to discriminatory treatment under the Act.  The Respondent also refused to provide an outcome on his grievance nor acknowledge his appeal. The Respondent’s conduct should also be seen in the context of the Respondent’s apparent refusal to provide documentation related to the dispute between the parties.  

Reasonable accommodation broadly defined

Nano Nagle School v Daly [2019] IESC 63 is authority for the proposition that “reasonable accommodation” should be broadly defined: as per McMenamin J, at para 29:

Referring to Article 5, the Court held an employer was required to take appropriate measures in particular to enable a person with a disability to have access to, participate in, or advance in employment. It referred to Recital 20 in the preamble to the Directive which gave a non-exhaustive list of such measures, which may be “physical, organisational and/or educational.” It concluded that, in accordance with the second paragraph of Article 2 Convention on the Rights of Persons with Disabilities (CRPD), reasonable accommodation was to be understood as being necessary and appropriate modification and adjustments, not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. Thus, it held: “It follows that that provision prescribes a broad definition of the concept of ‘reasonable accommodation’“.

The minimum requirements for reasonable accommodation

The Labour Court determination in Humphreys v Westwood Fitness Club (LRC EED037) sets out the test for the minimum requirements when an employer is asked for reasonable accommodation:

“The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer, should ensure that he or she in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee’s capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable, section 16(3) of the Act requires the employer to consider what if any special treatment or facilities may be available by which theemployee can become fully capable. The section requires that the cost of such special treatment or facilities must also be considered. Here, what constitutes nominal cost will depend on the size of the organisation and its financial resources.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

Nano Nagle School v Daly [2019] IESC 63 is authority for the proposition that the Respondent should have sought to engage with the Complainant at various points in his employment when he put the Respondent on knowledge of his disabilities.

“I respectfully disagree with the Court of Appeal’s conclusion on this issue, but I do not go so far as to say there is a mandatory duty of consultation with an employee in each and every case, the section does not provide for this, still less does it provide for compensation simply for the absence of consultation in an employment situation. But, even as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the Act. But absence of consultation cannot, in itself, constitute discrimination under s.8 of the Act.”

Full competence contingent on reasonable accommodation

The test to be applied by a tribunal as to whether accommodation is reasonable or not is set out at paragraphs 89 and 90 of Nano Nagle:

“The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to redesignate or create a different job to facilitate an employee. It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment is reasonable accommodation in the job, or whether, in reality, what is sought in an entirely different job. Section 16(1) of the Act refers specifically to “the position”, not to an alternative and quite different position.

But I am forced to agree with counsel for the appellant: he is correct in saying the Court of Appeal “read-in” words and intent to s.16, which are simply not to be found there. Thus, when Ryan P. observed that the fundamental proviso in s.16(1) “must be respected …” (para. 54), this was, to my mind, to misunderstand the section. Neither the Act, nor the Directive, (were it necessary to refer to it), requires full competence, seen in isolation. Ryan P. was of the view that s.16 required that there be full competence as to the tasks that are the essence of the position, otherwise subsection (1) [of s.16], is rendered ineffective. I differ from this view: to the contrary, full competence is, rather, to be assessed as contingent upon there having been reasonable accommodation and appropriate measures.”

It is submitted that the minimum requirement in this case was to assess the needs of the Complainant having regard to his specific mental disabilities and to have regard to the note from his GP, the patient printout and record and make any other necessary enquiries into the impact of his disability on his ability to perform his role, and whether reasonable accommodations could be made which would improve his ability to do so.

Reasonable accommodation need not be completely effective

Considering the equivalent provisions under the English equality legislation and its requirement for “reasonable adjustments”, the EAT held in Noor v Foreign & Commonwealth Office [2011] UKEAT 0470_10_1402  At para 33: 

  "Firstly, [the employment judge whose decision was appealed] said that in order for an adjustment to be reasonable, section 18B(1)(a) says that it must show that taking that step would prevent the disadvantage.  Section 18B(1)(a) does not say this.  It is a statutory direction to take into account the extent to which the step under consideration would prevent the effect in relation to which the duty is imposed. Although the purpose of a reasonable adjustment is to prevent a disabled person from being at a substantial disadvantage, it is certainly not the law that an adjustment will only be reasonable if it is completely effective. See, for example, HM Prison Services v Beart [2002] EAT/650/01 at para 29."

In the case of Dominique v Toll Global Forwarding Ltd UKEAT/0308/13/LA)  the EAT held that an employer failed in its duty to make reasonable adjustments when it did not adjust certain redundancy criteria that placed a disabled employee at a substantial disadvantage. This was despite the fact that making adjustments would have made no difference to the eventual decision to dismiss the employee at para 55:

 "The originating application in this case complained of detriment or disadvantage more generally and of hurt feelings as a result of disadvantageous or detrimental treatment in addition to questions of dismissal. The duty to make reasonable adjustments therefore extended to avoiding unlawful discrimination by subjecting the Claimant to a non-adjusted criterion that placed him at a substantial disadvantage because of his disability and was therefore detrimental in addition to a duty to avoid dismissal. Had the Employment Tribunal recognised this, its findings indicate that it would have found a failure to comply with the reasonable adjustments duty on this basis. When it came to consider questions of justification of discriminatory treatment falling short of dismissal, that failure to comply with the reasonable adjustments duty ought to have been factored into the justification question but was not. In this limited respect, we accept that this Tribunal erred in law."

 And in the case of Leeds Teaching Hospital NHS Trust v Foster UKEAT/0552/10, where the EAT stated that there need not be a "good or real prospect" of a proposed adjustment removing a disabled employee's disadvantage for that adjustment to be reasonable. An adjustment might be reasonable, and therefore required, where there is "a prospect" that it will succeed at para 17:

“17. In fact, there was no need for the Tribunal to go as far as to find that there would have been a good or real prospect of Mr Foster being redeployed if he had been on the redeployment register between January and June 2008.  It would have been sufficient for the Tribunal to find that there would have been just a prospect of that.  That is the effect of what the Employment Appeal Tribunal (Judge McMullen QC presiding) held in Cumbria Probation Board v Collingwood (UKEAT/0079/08/JOJ) at [50].  That is not inconsistent with what the Employment Appeal Tribunal (Judge Peter Clark presiding) had previously said in Romec Ltd v Rudham (UKEAT/0069/07/DA) at [39].  The Employment Appeal Tribunal was saying that if there was a real prospect of an adjustment removing the disabled employee’s disadvantage, that would be sufficient to make the adjustment a reasonable one, but the Employment Appeal Tribunal was not saying that a prospect less than a real prospect would not be sufficient to make the adjustment a reasonable one.  When those propositions were put to Mr Boyd, he did not disagree with them.”

What Noor, Foster and Dominique say is that any adjustment (accommodation) can still be reasonable even if it would not ultimately prevent an employee being dismissed. So for example, in Complainant’s case if the Respondent had not dismissed him but instead  redeployed him and/or extended his probation  and/or carried out some investigations into his health and/or arranged a meeting with the Client so that he could understand its alleged issues and agree a way forward, those actions would still be a reasonable adjustment (accommodation) (and the claim would not fail) even if the outcome was ultimately that the Complainant was still dismissed after those reasonable adjustments were put in place. This is because those adjustments would still alleviate the disadvantage that the Complainant suffered from his disability.  Therefore, the Complainant asserts that the obvious accommodation was not to dismiss the Complainant but to give him more time, continue his employment at least until the above measures were explored. The Complainant also asserts that such measures could have meant that the Complainant was redeployed to another role. This is particularly the case with a novel condition such as long COVID where long-term prognoses are extremely challenging.

Request for accommodations after decision to dismiss not relevant

The Complainant does not accept that he only sought reasonable accommodations after a decision to dismiss had been made, but even if that is held to be the case, Farnan v Co. Wexford Community Workshop (Enniscorthy) Clg ADJ-00039184 is persuasive authority for the proposition that this is not relevant, in circumstances where there remained opportunity for the employer to reassess the decision in light of the request:

“Even if I were to accept the respondent position that they only became aware of a disability in January 2022 and then taking the respondents defence at its very height and if they had onlybecome aware of the existence of a disability on the 14th of January 2022 via the Complainant’s appeal letter, there was still time to reconsider and the appeal was the opportunity for the respondent to now consider this additional information which was being advanced as reason for the Complainants excessive sick leave in her previous job.  This appeal was the opportunity for the respondent to revisit its decision and to make further enquiries in accordance with Westwood before taking a decision to the detriment of the Complainant.

The respondent at this stage could and should have made enquiries into the Complainant’s condition and her fitness to undertake the employment.”

Similarly in the UK the EAT in Baldeh v Churches Housing Association of Dudley & District Ltd [2019] UKEAT 0290_18_1103 held that, where an employer had not known about an employee's disability at the time of their dismissal but had been told about it at an appeal hearing, the dismissal could be discriminatory under section 15 of the England and Wales’ Equality Act 2010 stated at paragraph 15:

“On the other hand, the Claimant was of course a litigant-in-person in pursing her claim. Her ET1 form refers to discrimination on the grounds of disability and then recites the appeal and the appeal decision letter. The bundle which the Tribunal had included the appeal letter and the appeal outcome letter and a short statement was also put in by Mrs Greenidge who heard the appeal. She was not in fact called to give evidence because she had left the Respondent in the meantime, but it was accepted that she would have been called by the Respondent otherwise. For whatever reason, the ET did make findings about the state of knowledge of Respondents between the actual date of dismissal and the appeal. The outcome of an appeal against a dismissal is, one can say, integral to the overall decision to dismiss.”

COMPLAINANT’S DIRECT EVIDENCE

The Complainant asserted that he was never made aware that he would only be working for one client.  There was nothing in his contract of employment to indicate that this was the case.  He did not believe that he was being recruited for only one client.

The Complainant asserted that he mentioned to Ms Allen in April 2023 that he was suffering from long COVID but he told her that it would not affect his work.  The Complainant said that Ms Allen asked him about reasonable accommodation, and he told her that the did not need anything. The Complainant asserts that there is a duty on an employer to make reasonable accommodation and there is no duty on an employee to request it.

The Complainant confirmed that at the time he informed Ms Allen that he had long COVID he did not think that he needed any reasonable accommodation but that this changed, and he started to notice in June 2023 that he was not working effectively.  He had difficulty sleeping and was always tired which affected his productivity; his communication skills and cause him to be irritable.

The Complainant said that his mid-probation meeting with Ms Allen took place in June 2023. At this meeting he told Ms Allen that he had been having difficulty sleeping and concentrating.  He did not seek reasonable accommodation.

The Complainant met with Ms Allen on 10 July 2023 for their weekly catch-up meeting. He told Ms Allen that he was feeling overwhelmed and taking too long to complete tasks.  The Complainant asserts that he told Ms Allen that he suffered from depression and that he was getting treatment.  She responded that she was glad that he was getting the help he needed.

The Complainant said that he was due to meet with Ms Allen on 10 August 2023 for a catch-up. He asserted that there was no mention of it being a probation review meeting.  However, he received an email on 9 August 2023 informing him that HR would be present at the meeting.  The Complainant contacted Ms Allen and asked her if he could be dismissed. He informed her that he suffered from depression and long COVID and that he wanted to discuss reasonable accommodation at his probation review meeting.

At the meeting on 10 August 2023, Ms Allen informed the Complainant that he had failed his probation.  The Complainant referred to the client’s mental health programme.  The Complainant asked to be redeployed within the Respondent organisation – he referred to a vacancy in the employment law area.  The Complainant asserted that Ms Allen refused his request and said that the decision to dismiss him had been made.

The Complainant said that his issues with performance arose because of his disability.  He was of the view that more time to complete his probation was a reasonable accommodation.

Victimisation and harassment

The Complainant asserted that a letter of 14 August 2023 from HR was an attempt to dissuade him from exercising his rights.  Furthermore, the Respondent refused to allow him to bring his trade union representative to his grievance hearing and refused to conduct the hearing remotely. 

The Complainant said that he was late for his grievance hearing because his train was delayed.  When he contacted HR about the delay, he was told that it was ok to arrive at 11am; he was not told not to come to the office. The Complainant said that he suspected that the Head of Litigation did not want to deal with the grievance.  He felt that he had suffered harassment and/or victimisation as a result.

The Complainant said that he sent a letter from his GP dated 15 August 2023 confirming his diagnosis of long COVID and depression.

The Complainant referred to the EE1 form he submitted to the Respondent to which he did not receive a response which he asserted hindered his ability to prepare his case.

Cross-examination of the Complainant by Ms Mallon BL on behalf of the Respondent

The Complainant said that he had been diagnosed with long COVID in April 2023.  He agreed with Ms Mallon that the letter from his GP dated 15 August 2023 did not provide a conclusive diagnosis of long COVID but only referred to a possible diagnosis. 

The Complainant said that he had been diagnosed with depression in July 2023.  Ms Mallon referred to a subject access request made by the Complainant to his GP practice which was submitted in evidence.  The Complainant agreed that the relevant record for July 2023 did not state that the Complainant was suffering from depression.

The Complainant confirmed that he was not disputing the senior associates were normally assigned 24 or 25 files.  The Complainant accepted that the Client was a long-standing client of the Respondent organisation.  He confirmed that formal complaints from the Client can lead to the Respondent being taken off the panel of legal advisors to the Client.

The Complainant confirmed that he told Ms Allen in mid-April that he did not need reasonable accommodation.

The Complainant confirmed that prior to the meeting on 10 August 2023, he did not provide the Respondent with any medical evidence of his disabilities.  The Complainant also confirmed that he had no formal diagnosis of long COVID. He further confirmed that he had no diagnosis of anxiety or depression in June 2023.

The Complainant did not dispute that he was the only employee of the Respondent that the Client ever complained about.

The Complainant confirmed that the unhappiness of the Client had been discussed at the probation meeting on 29 June 2023.  He further confirmed that he did not ask for reasonable accommodation at that time.

The Complainant confirmed that he told Ms Allen on 10 July 2023 that he had problems with his mental health and had been prescribed medication.  He confirmed that he did not seek reasonable accommodation at that meeting.

The Complainant confirmed that his email to Ms Allen of 9 August 2023 was the first time he had sought reasonable accommodation.

The Complainant said that he never disputed that there were issues with his performance, but he felt that they were exaggerated and not the real reason for his dismissal.

The Complainant strongly disagreed with Ms Mallon’s suggestion that 9 August was the first time Ms Allen had heard about his depression. He thought that she was going to listen to him and the meeting on 10 August 2023 and discuss reasonable accommodation.

The Complainant confirmed that the assistive technology he was seeking was digital dictation and auto correct.  He confirmed that he did not ask for digital dictation prior to 9 August 2023.

The Complainant explained that he felt that an internal transfer would be reasonable accommodation.

The Complainant confirmed that he sent the letter from his GP dated 15 August 2023 to the Respondent on 25 August 2023 after his employment had ended.

The Complainant confirmed that his contract did not provide for an appeal where an employee did not pass probation.

The Complainant confirmed that he does not have a comparator.

The Complainant said that he suffered harassment when his grievance of 11 August 2023 was not heard with ten days in accordance with the Respondent’s grievance policy. The Complainant confirmed that he was no longer an employee of the Respondent when he emailed the Respondent about this matter on 29 August 2023.

The Complainant confirmed that the first time he sought that his grievance hearing be held remotely was 13 September 2023 – the day before the hearing.

The Complainant confirmed that he arrived at 11.06 am for the hearing that had been scheduled for 10.30am.

Questions from the Adjudication Officer

The Complainant confirmed that he had not provided any medical confirmation of his disability during his employment with the Respondent.

CONCLUSION

The Complainant has suffered significant loss due to his discriminatory dismissal by the Respondent. His earning capacity has been significantly reduced and he currently enjoys a much worse standard of living, having had to take a £30,000 reduction in wages to find alternative employment. He also feels given the nature of the Irish legal employment market that it will be extremely difficult for him to obtain employment with a solicitor firm in the Republic again, and this indeed was his experience when he sought employment after his dismissal. The Complainant has suffered pain, embarrassment and significant mental anguish as a result of his discriminatory treatment. 

The Complainant asserts that the acts and/or omission by the Respondent on 9,10,14,15,29,30 & 31 August 2023 and 1,13 & 20 September 2023 as well as 16 October 2023 were acts of victimisation and/or harassment. 

The Complainant submits that he provided valid evidence of his disabilities.  The Complainant submits that there is no requirement in law that disability has to be proven in a particular way.

The Complainant submits that when he requested reasonable accommodation on 9 August 2023, this should have led to a reconsideration of the decision to dismiss him.  The Respondent could and should have made enquiries.  There was a responsibility on it to investigate.  The Complainant suggests that his notification of a disability might explain his performance issues.

The Complainant submits that time is a reasonable accommodation and that his probation could have been extended.  This would have given time to see if his performance improved.

The Complainant submits that conflicting evidence has been adduced about the nature of his job.  The Complainant felt that his contract provided that it would gain experience in different areas.  If he was to be restricted to one client, this should have been made clear to him.

The Complainant submits that full competence was contingent on the provision of reasonable accommodation.

The Complainant submits that there was sufficient evidence to indicate that he suffered from a disability.

Victimisation and harassment

The Complainant submits that his adverse treatment by the Head of Litigation and the representative from HR on 20 September 2023 is not disputed as they did not attend the adjudication hearing.

The Complainant submits that the Respondent failed to provide records as required under the Act.

The Respondent submits as follows:

The Complainant was employed by the Respondent in its Public, Regulatory and Investigations Department (hereafter “PRI”) starting on 13 March 2023. His role was that of Senior Associate. His employment terminated on 18 August 2023, and he was notified of his dismissal on 10 August 2023 which was the last day he worked for the firm.

The Complainant’s contract of employment contains a very clear clause in relation to probation:

“The first six months of the Employee’s employment will be on a probationary basis. The purpose of this is to provide an opportunity for both the Employee and the Firm to assess the Employee’s suitability for the position. During this period the Employee may terminate the employment on the giving of two weeks’ prior notice in writing and the Firm may terminate the employment on the giving of one weeks’ prior notice in writing. In the case of the Firm, this may be one weeks’ salary in lieu of such notice. The Firm reserves the right to extend the probationary period if it believes it necessary to do so. On satisfactory completion of the Employee’s probation period they will be appointed a permanent member of the staff.”

The Complainant was employed as a Senior Associate working solely with a large client of the Respondent. He was recruited solely to do this work with the possibility he might take on other files for one other client in the future – however this never happened. The Complainant was recruited solely to do professional regulatory work and his skill set would not suit the other work of the PRI team which was public administrative law advice and litigation.

On starting work with the firm, the Complainant was allocated 12 files. The standard caseload for a member of the professional regulatory team is 25-30 files. The Complainant was given fewer files so that he could have the opportunity to settle into the department and the firm. It was anticipated that files would be added to his workload as new referrals were received from the Client.

The Client in question is a longstanding client of PRI. Under the contract/service level agreement with this Client, the Respondent must meet several KPIs. A failure to comply with these KPIs means the firm could be removed on either a temporary or permanent basis from the panel of four firms that receive this Client’s work. It is one of the PRI’s Departments most important clients and it is imperative that the Client is happy with the service provided.

It is noteworthy that in the 9 years that the firm has carried work for this Client no complaint was ever made by the Client regarding anyone in the firm save for the Complainant.

When the Complainant joined the PRI Department, Ms Catherine Allen, Partner and Head of PRI, had a meeting with all of the professional regulatory team including the Complainant to go through the Client’s KPIs. Consequently, the Complainant was well aware of same.

Shortly after the Complainant commenced working, he advised Ms Allen that he suffered from long COVID. Ms Allen sympathised with the Complainant and asked what impact this had. He stated that it did not affect him workwise but that he had to manage his social life accordingly. Ms Allen contacted HR to ascertain if there was anything that was required. She was advised that unless the Complainant had indicated a need for accommodation there was nothing required. It is important to note that the Complainant made no request for any accommodation and indeed stated that long COVID did not impact him work wise.

On 23 June 2023, Ms Allen received a call from the Client expressing concerns regarding the management of the Client’s files by the Complainant. The Client indicated that it would refrain from issuing a formal warning to the firm under the service level agreement as it was the first time that such matters were being raised but made it clear it was very concerned. This was followed up with an email setting out a description of its concerns.

This email was forwarded to the Complainant. Ms Allen also sent him a memo setting out the Client’s requirements for KPI. The Complainant replied by email setting out steps he proposed to take.

On 26 June 2023 the Complainant met with Ms Allen and these issues were discussed. He did not raise any health issues at this meeting. He acknowledged that there were performance issues. On the same date Ms Allen sent an email to the Complainant inviting him to a mid-probation review and stating it would be scheduled shortly. This review took place on 29 June 2023. At that meeting the following points were outlined:

·                There were lots of things going well so far and it was clear the Complainant understood the work.

·                There needed to be a clean bill of health from the Client.  Ms Allen was meeting with the Client on 19 July 2023 and an update would be given then.

·                This means compliance with all Client KPIs and also updates to witnesses would be required. In addition, files needed to be well progressed, with attention to detail. Any changes to drafts by Ms Allen should be very limited.

·                The Complainant needed to be conscious of the impact of his way of working on others- this was in reference to the following issues:

o   The Complainant should communicate via emails rather than phone calls. This is important for both internal and external communication as there needs to be a document for everything that he has done and every interaction that he has had with the potential witness.

o   Interactions with the team – deadlines for bills, call over spreadsheets etc must be met.

o   The Complainant needed to leave enough time for the legal secretary and legal assistant to prepare their work.

o   The Complainant needed to leave enough time for Ms Allen to review documents.

o   Ms Allen said that she would update him after meeting with the Client on 19 July 2023 and would arrange a follow up meeting for mid-August.

It was made very clear to the Complainant that improvement was required for him to successfully pass his probation and he accepted these points and did not raise any objections to them. It is noteworthy that he did not raise any issues at this meeting in relation to any matters including his health nor did he suggest that he needed any accommodations.

On 4 July 2023, Ms Allen re-sent the Complainant a memo regarding preparing for the Client call-overs and reminding him about time recording requirements which were not being met.

On 10 July 2023 Ms Allen advised the Client that another solicitor on the team was leaving the firm and that her files would be assigned in due course to other members of the team. The following day the Client emailed asking that none of the files be re-assigned to the Complainant until they had their meeting the following week.

Ms Allen met with the Client on 19 July 2023, and it was made clear that the Client was still not happy with the Complainant’s performance. Amongst its concerns was that his advice was very wide and broad, his approach different to other members of the team and that the Client had to put a lot more effort into the cases that he was dealing with in comparison to the other team members. The Client stated that it did not want any files from the solicitor who was leaving the firm to be transferred to the Complainant.

The situation was not tenable. The Complainant was recruited as a Senior Associate and yet his case-load was half of the other team members. Due to his performance issues, the Complainant could not take on any additional files at the Client’s request. It was decided that the Compliant would not pass his probation.

The Complainant was due to go on annual leave and Ms Allen decided not to raise the matter with him immediately but rather to wait and raise it at the meeting scheduled for 10 August 2023 regarding his probation.

On 9 August 2023, Ms Allen sent an email to the Complainant regarding the meeting the following day.

The Complainant responded by email stating inter alia:

“You would recall that I disclosed at an in-person meeting in April that I suffer from long COVID and in a remote meeting in July that I had visited my GP for treatment … for depression. Therefore, I would like to discuss reasonable accommodation at the meeting tomorrow.

I noted that the catch up meeting was intended to be in person but I do not think it was made clear until this morning that this would be a probation review. If there is an agenda, I would be grateful if you could share it in advance.”

Ms Allen responded by email that same day as follows:

“I do recall that you disclosed to me earlier this year that you suffer from long COVID. Having discussed this and when asked, you did not make us aware that you needed any accommodations or have you requested any accommodations to be made since then.

This is the first time I have been made aware that you have depression. You mentioned that you had a condition previously and were attending your doctor but provided no other information nor asked for any accommodations to be made. I am sorry to hear that you have depression, and we are always happy to consider making reasonable accommodations when we are aware of them.

There is no agenda for tomorrow's meeting. Your probation is due to expire on 13 September 2023. We previously had a conversation on 29 June due to ongoing concerns in relation to your performance and it is timely to now have a further discussion with you in this regard.

If you have any other questions in advance of the meeting, let me know.”

The Complainant then wrote a further email stating:

“Please see a patient summary from my GP, given the short notice I was not able to provide a GP's letter.

I was having issues with fatigue and sleeping which was causing “brain fog” or poor concentration and I was taking longer to process and undertake tasks. This was in turn giving me anxiety and low mood whilst affecting my sleep. The impact of both my long COVID and my depression were exacerbating each other and affecting my performance. I was aware there were issues with my performance and hence I visited the GP.

I believe that I should be allowed more time for the treatment of my depression and long COVID to improve my performance and also be provided with some assistive technology.

Unfortunately, due to the short notice an official from SIPTU is unable to attend tomorrow.

I will see you then.”

The Complainant also sent another email to Ms Allen that day stating that he was still coming to terms with and assessing his post COVID self but that in time he believed that he could ultimately succeed in the role.

The meeting took place on 10 August 2023. Present at the meeting were the Complainant, Ms Allen and a member of the Respondent’s HR team. Ms Allen informed the Complainant that the latest feedback received from the Client was unfortunately that things had not improved to a sufficient level. He was told that because he was hired to work on the Client's caseload that unfortunately meant that he was not going to pass probation. The Complainant asked if accommodations could be made due to his medical history. Ms Allen confirmed that she had asked him in the past if there was anything that the firm could do to assist him and that the answer was no. The decision that he was not going to pass probation was made when the Client asked that he no longer be given their work. As he was hired solely to do that specific Client’s work and had no other clients this meant his role was untenable and he would not be passing probation.

On 11 August 2023 the Complainant issued a formal grievance by way of email. In that grievance the Complainant effectively alleged disability discrimination and a failure to provide reasonable accommodation.  A series of emails then passed between the Complainant and HR in relation to his grievance.  It was ultimately agreed that a meeting would take place on 20 September 2023 at 10.30a.m. with the Head of Litigation. The grievance procedure does not apply to a person who is no longer an employee of the firm.

The meeting did not proceed on that day due to the fact that the Complainant was delayed/late. The Complainant was asked and indeed accepted a new meeting date for 15 October 2023 at 11am. However, the Complainant then sent an extraordinary email on 11 October 2023 stating:

“I was humiliated by Ms Allen in the August meeting. In advance of the meeting, she misled me into believing we could discuss reasonable accommodation but when I got to the meeting, she refused to discuss reasonable accommodation.

I was humiliated in September, when I overheard [the Head of Litigation] angrily talk about me to his colleague (I do know his name) who called [the Head of Litigation] to let him know I was on the 6th floor, by not meeting me and by the inconsistent and seemingly false reasons provided for not meeting me (there has been no effort to correct the position).

I had already explained in previous emails why the attendance of trade union representative would be a reasonable accommodation (as has been typical, there has been no effort to understand or alleviate the disadvantage my health causes). Therefore, as Mason Hayes and Curran will not adjust their grievance policy, I will not be attending on Monday 16th October.

Please decide the grievance in my absence.”

HR responded as follows:

“I acknowledge receipt of your e-mail below dated today.

Your allegation that Ms Allen “misled you” in advance of the August meeting is unfounded and rejected in full.

Your allegation that [the Head of Litigation] “spoke angrily” about you to a colleague is also rejected in full. On no occasion did [the Head of Litigation] speak angrily about you to any person.

I would like to remind you that the firm’s Grievance Procedure is only available to MHC employees and therefore does not apply in your case, as you are no longer an employee of the firm. That said, we were happy to facilitate a meeting between you and [the Head of Litigation], as Head of the Litigation Department.

As you know, the meeting with [the Head of Litigation] was scheduled to take place at 10.30 am on Wednesday 20 September. You did not arrive at our office until 11.06 am i.e. more than 35 minutes late.  [The Head of Litigation] had a Client meeting at 11:30 AM. No “false” reasons were given to you for not meeting with you; you were informed that the meeting could not take place because you did not attend at the appointed time. In the circumstances, we offered to reschedule the meeting with you for another date when there would be sufficient time available to [the Head of Litigation] and you for you to explain your grievance and discuss the circumstances surrounding it. We did not view your suggestion to conduct the meeting for 20 minutes in person and whatever remainder might be required by phone as reasonable, nor effective.

It was agreed with you that we would reschedule the meeting for Monday morning, 16 October. You stated in your e-mail below that you will not now attend that meeting. Your position in this regard is noticed and we are therefore treating this matter as closed.”

The Complainant replied by email stating that he did not dispute that he was late, but he did not agree with the rest of email.

Does the Complainant have a disability?

The Complainant’s submissions suggest that he was suffering from a disability due to long COVID.  It is noteworthy that throughout his employment save for the day before his final review meeting, he did not provide the firm with any medical documentation to suggest that he suffered from a disability.

The burden of proof is on the Complainant to provide proof of his alleged disability and to corroborate his assertion that he suffered from same at all material times. The Complainant has merely provided a printout of medical records in his submission.

In the decision of the Labour Court in Anthony v Margetts (EDA038) the Court observed:

“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.”

It is for the Complainant to raise a prima facie case of discrimination before the burden of proof shifts to the Respondent. The Complainant clearly has failed to do so in circumstances where he has failed to establish the most fundamental pre-requisite of a disability discrimination claim, namely that he has a disability for the purposes of the Act at all material times.

The claims

The Complainant appears to be making two main arguments of discrimination. Firstly, he appears to argue his dismissal was a discriminatory dismissal and secondly that he was not provided with reasonable accommodation.

No prima facia case of discrimination

The Complainant has presented no facts which show that he has been treated less favourably than another person employed by the Respondent on the grounds of disability in relation to the discriminatory dismissal.  He was dismissed because he did not pass his probation in accordance with his contract of employment. He has not established that he was dismissed because he suffered from an alleged disability.

The Complainant has not established a prima facie case of discrimination. The Complainant has failed to shift the burden of proof and it falls to the Complainant to prove that discrimination has occurred on the grounds of disability, which is denied. Section 85A of the Employment Equality Act 1998, as amended, provides:

'(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.'

The Respondent submits that the facts raised by the Complainant are not of sufficient significance to raise an inference of discrimination. These are key requirements in order to shift the burden of proof to the Respondent as set out in the Labour Court decision in Southern Health Board v Mitchell DEE 1/2001 (reported at [2001] E.L.R. 201) as follows:

“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.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”

The case of Melbury Developments Limited [2010] ELR 64 is one of the leading authorities on the issue of the burden of proof in equality cases.  It was held in that case “Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” In a later case (applying Melbury Development Limited) it was held that it is "well settled law that mere assertion cannot be elevated to the status of evidence".

It is submitted that the Complainant mentioned to Ms Allen that he had long COVID but specifically told her that it did not affect him work-wise. He did not look for any accommodations until the day before his final review when the decision to dismiss had already been made. The Complainant was not dismissed because he had a disability he was dismissed because he did not pass probation.

It is for the Complainant to prove that the there was a link between the alleged behaviour complained of (in this case a dismissal) and his disability. The Labour Court in the case of Rescon Limited v Scanlan held:

"In this case the Complainant has adduced no evidence to establish a nexus between his gender and the Respondent's failure to offer him the disputed post other than that a woman was appointed and he was not.  In the Court's view a mere difference in gender and a difference in treatment, in the sense that the Comparator was appointed and the Complainant was not, could never in itself provide a sufficient evidential basis upon which to raise a presumption of discrimination."

The Respondent submits that even if the Complainant can prove he had a disability at all material times it is not enough to shift the burden of evidential proof to the Respondent.

In the decision of the Labour Court in Arturs Valpeters v Melbury Developments Ltd, the Court observed that there has to be "evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence."

Prima facie evidence has been held by the Labour Court in the decision of Rotunda Hospital v. Gleeson [DDE003/2000] to be "evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred". The Complainant therefore has to not only establish primary facts upon which they will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination.

In its decision in Cork City Council v. McCarthy EDA21/2008, the Labour Court held that:

"The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts."

The Complainant cannot escape the fact that his performance was poor and the Client did not want him to work on any more of its files. He did not pass probation.

No comparators

The Respondent submits that the Complainant has failed refused and neglected to name comparators. As leading commentators have stated “In general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant. Therefore, without a comparator, the claim will fail, and the choice of the comparator is of significant importance to the success of any claim.”

The Complainant is required to prove that he was treated less favourably than his chosen comparator(s); if he cannot do this his claim must fail. In the decision of Saoirse Soden v Supervalu Harris' Supervalu (ADJ-00034460), the Adjudication Officer noted that:

"A comparator must be employed by the same employer as the complainant or by an associated employer. A comparator is an evidential tool. They are intended to contrast the treatment of the complainant, in respect to the matter complained of, with that of another person in similar circumstances who does not have the protected characteristics relied upon."

It is submitted that any comparator – even a hypothetical comparator – would be treated as the Complainant was. Anyone in the position of the Complainant (where the Client raised significant concerns about their performance and did not want them working on its files) would fail probation regardless of whether the individual had a different disability to the Complainant’s alleged disability or indeed no disability.

Reasonable accommodation

The Respondent submits that there is no reasonable accommodation claim based on the facts. The Complainant never sought any form of accommodation or suggested he needed any requirements prior to the day before his review meeting on 10 August 2023. Indeed, he specifically stated he did not need anything.

The Complainant never provided the firm with any medical letter, or certificate of any kind suggesting a requirement for reasonable accommodation. The decision to dismiss the Complainant on the basis that he did not pass probation was made before he looked for any accommodations on the 9 August 2023 and even then, his request for accommodations was vague in the extreme i.e. he should be allowed more time to pass probation and he should be provided with “some assisted technology”.  He did not even state what technology he thought he needed or how it would help him.  Additional time to pass probation is not a “reasonable accommodation” for the purposes of the Act.

It is submitted that the Complainant has failed to raise any prima facia case in relation to lack of reasonable accommodation.

Direct evidence of Ms Allen

Ms Allen confirmed that the advertisement for the Complainant’s role was specifically in relation to her team and that the Complainant was recruited due to his previous, relevant work experience.  Ms Allen said that she made the role clear to the Complainant before he commenced employment with the Respondent.  Ms Allen confirmed that her team is completely separate to the employment rights team.

Ms Allen confirmed that the Complainant mentioned that he suffered from long COVID at a weekly catch-up meeting in April 2023.  The Complainant said that it did not affect his work and that he did not need any reasonable accommodation.  Ms Allen confirmed that she was not provided with any medical evidence showing long COVID.

Ms Allen said that the Client expressed concerns about the Complainant’s responsiveness and his preference for phone call rather than emails. 

At the mid-probation review, Ms Allen wanted to discuss the issues that had been raised by the Client as these needed to be resolved in order for the Complainant to pass his probation.

Ms Allen said that the Complainant was not meeting billing timelines.  Ms Allen said that the Complainant did not dispute any performance issues which she raised.  Nor did he raise any health issues.

Ms Allen said that she scheduled a follow-up for 10 August 2023 which was separate to their normal catch-ups. Ms Allen said that she told the Complainant that there had to be a clean bill of health from the Client in order for him to pass his probation.

Ms Allen said that when she notified the Client that one of the associates that worked on its files was leaving, the Client requested that the files would not be transferred to the Complainant until after the client meeting of 19 July 2023.  At that meeting, the Client indicated that there was some improvement but that it was still unhappy. The Client was unable to deal with the Complainant’s preference for phone calls instead of emails.  The Client indicated that it did not want any additional files to be assigned to the Complainant.

Ms Allen said that at one catch-up meeting, the Complainant told her that he had attended his doctor and received treatment. She did not enquire into the reason for the visit as she operated a high trust, high flexibility team.  Ms Allen confirmed that she was not provided with any documentation regarding the Complainant’s mental health and that the Complainant did not seek reasonable accommodation.

Ms Allen said that the Client’s stance meant that the Complainant’s position became untenable and that she had no other area of work to which she could transfer him.

Ms Allen said she held off informing the Complainant that he had not passed his probation until 10 August 2023 due to annual leave arrangements.

Ms Allen confirmed that the Client’s mental health programme did not apply to external advisors. 

Ms Allen confirmed that the Complainant’s email to her of 9 August 2023 was the first time she became aware that he suffered from depression. She did recall that he informed her that he suffered from long COVID but that he did not ask for reasonable accommodation.  Ms Allen confirmed that in his email of 9 August 2023 the Complainant asked for more time to complete his probation and to be provided with assistive technology.

Ms Allen confirmed that prior to 9 August 2023, the Complainant did not provide any medical information in relation to his disabilities, nor did he ask for reasonable accommodation.

Ms Allen said that at the meeting on 10 August 2023, she explained her concerns.  She told the Complainant that his position was untenable and that he had not passed his probation.  Ms Allen said that the Complainant asked if she could take account of his medical conditions and maybe offer an alternative position.

Cross-examination of the Ms Allen by Mr Cleary on behalf of the Complainant

Ms Allen confirmed that she did not draft the Complainant’s contract but that she approved it.  Ms Allen said that only the Client was sufficient to sustain the workload of an associate. Ms Allen said that she explained to the Complainant at his second interview that she hoped to grow the practice. 

Ms Allen said that the Complainant’s performance was discussed at a meeting with the Client on 19 July 2023.  The Client informed her that it had difficulty with the Complainant’s preference for chats rather than emails.  Ms Allen confirmed that the Respondent would expect advice to clients to be provided in writing.

Ms Allen said that the Client followed-up the meeting of 19 July 2023 with an email which she brought to the Complainant’s attention.  Ms Allen confirmed that she decided after the meeting of 19 July 2023 that the Complainant would not pass his probation.

Ms Allen said that she did not know why the Respondent did not reply to the Complainant’s EE1 form.

Ms Allen was asked if it was appropriate for an employer to ask for medical evidence.  She responded that it was not.

Ms Allen was asked how she responded during a 9 August 2023 telephone conversation with the Complainant when he asked her if he was likely to be dismissed at meeting on the following day.  Ms Allen said that she told the Complainant that it was a possibility.

Ms Allen was asked if she should have considered her decision to dismiss the Complainant when he requested reasonable accommodation on 9 August 2023.  Ms Allen said that the decision to dismiss the Complainant had been made.  She could not facilitate an extension to his probation because the Client would not work with him.

CONCLUSION

The Respondent submits that the Complainant has singularly failed to raise a prima facie caseand, therefore, the burden of proof does not shift to the Respondent.

Discriminatory dismissal

The Complainant asserted that he was dismissed due to performance issues caused by his disabilities.  However, his GP’s letter of 15 August 2023 only refers to a possible long COVID diagnosis and does not provide any evidence the Complainant could not carry out his job due to his disabilities.

The Respondent submits that the Complainant has failed to establish a causal link between his disabilities and his dismissal.

The Respondent submits that 9 August 2023 was the first time the Complainant mentioned that he suffered from depression/anxiety.  The Respondent accepts that the Complainant made it aware that he suffered from long COVID but he did not request any reasonable accommodation.

Reasonable accommodation

The Respondent submits that an extension of the probation period is not reasonable accommodation.

The Respondent submits that the Complainant did not request reasonable accommodation until the final hours of his employment with the Respondent when he already knew that his dismissal was a distinct possibility.

The Respondent submits that the Complainant did not provide any medical proof of disability or the need for reasonable accommodation.

Harassment

The Respondent submits that the Respondent’s handling of the Complainant’s grievance was not harassment given the timeframe involved.

Victimisation

The Respondent submits that the Complainant did not identify a comparator who was afforded the opportunity to appeal failure to pass probation nor one who was afforded a remote hearing.

The Respondent submits that the Complainant only requested a remote hearing when he did not want a particular date.

The Respondent submits that as the grievance hearing was not a disciplinary hearing, the attendance of the Complainant’s trade union representative was not required.

The Respondent submits that there is no evidence that it attempted to dissuade the Complainant from raising a grievance.

Cognisable Period

The first matter for me to determine is the cognisable period for the herein complaint.

The Complainant’s complaint referral form was received by the WRC on 28 November 2023.  In accordance with section 77(5) of the Employment Equality Act 1998, as amended (the ‘Act’), the cognisable period for the herein complaint is six months from 29 May 2023 to 28 November 2023.

However, as the Complainant’s employment with the Respondent ended on 17 August 2018, I find that the appropriate cognisable period for the complaints of discriminatory dismissal, failure to provide reasonable accommodation and harassment is the period from 29 May 2023 to 17 August 2023.  The Complainant did not request an extension of the cognisable period.

In relation to the cognisable period for the complaints of victimisation, I am guided by the ECJ judgment in Case C-185/97, Belinda Jane Coote and Granada Hospitality Ltd, where the ECJ found that victimisation can continue even after an employment relationship has ceased. 

The next matter for me to decide is which elements, if any, of the Complainant’s referral fall outside the cognisable period.

In this regard, I note that the Complainant has raised a number of complaints of harassment which occurred after 17 August 2023.  As these occurred after the Complainant’s employment with the Respondent had ended, I find that they occurred outside the cognisable period and, therefore, will not be investigated in the context of the herein proceedings. 

Substantive issues

The issues for decision in this case are (i) whether the Complainant was discriminated against by the Respondent in relation to discriminatory dismissal on the grounds of disability; (ii) whether as a person with a disability within the meaning of section 2 of the Act, the Respondent failed to provide the Complainant with reasonable accommodation contrary to section 16(3) of the Act, (iii) whether the Complainant was subjected to victimisation contrary to section 74 of the Act and (iii) whether the Complainant was subjected to harassment on the grounds of disability contrary to section 14A of the Act. In reaching my decision, I have taken into account all of the submissions, written and oral, made by the parties.

Burden of Proof

Section 85A of the Act 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 him.  If he 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.

In the case of Melbury Developments v Arturs Valpetters EDA0917 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”.

Discriminatory dismissal

The first issue that I must decide relates to the Complainant’s claim that he was subjected to a discriminatory dismissal on the grounds of his disability. The Respondent disputes the claim and asserts that the Complainant was dismissed for other reasons not connected with his disability.

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". 

“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 definition of a disability has been interpreted in a broad manner in the past by the Courts, both within this jurisdiction and by the Court of Justice of the European Union (CJEU). Whilst it is clear that the definition of disability in the Acts is wider than that in Directive 2000/78/EC (which establishes a general framework for equal treatment in employment and occupation), I attach importance to the judgment of the CJEU in the case of HK Danmark –v- Dansk Almennyttigt Boligselskab C-335/11 and C337/11 where it was held that “that the concept of ‘disability’ in Directive 2000/78 must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one”.

In Hallinan v Moy Valley Resources DEC-S2008-025 the Labour Court held that the following must be established in order for a complainant to meet the burden of proof:

(a)    The complainant must establish that he or she is covered by the protected ground;

(b)    Establish the specific treatment has allegedly taken place

(c)     The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

In order to meet the first and second criteria established by the Labour Court in Hallinan, the Complainant must show that, at the material time, he had a disability and, in accordance with judgment of the CJEU cited above, his disability hindered his “full and effective participation … in professional life on an equal basis with other workers”.  The Complainant asserts that he suffers from two disabilities – long COVID and depression. There is no dispute that the Complainant informed Ms Allen that he was suffering from long COVID in April 2023.  There is also no dispute that he told her that he did not require any reasonable accommodation in order for him to fulfil the requirements of his position. 

There is a dispute between the parties as to when the Complainant informed Ms Allen that he suffered from depression.  In his evidence, the Complainant asserted that he informed Ms Allen of his depression in July 2023 but indicated that he did not require reasonable accommodation at that time.  Ms Allen, other the other hand, asserted that the Complainant did not inform her that he suffered from depression until 9 August 2023.

I am of the view that it is not necessary for me to resolve the conflict in evidence, as by his own admission, the Complainant did not inform the Respondent that his depression impacted on his ability to carry out his role until 9 August 2023 when he sought reasonable accommodation.

I note Ms Allen’s oral evidence that she decided that the Complainant would not pass his probation following her meeting with the Client on 19 July 2023 but that she did not convey her decision to the Complainant until 10 August 2023 due to pre-arranged annual leave of both the Complainant and Ms Allen.  I am prepared to accept the veracity of this evidence given that Ms Allen told the Complainant on 9 August 2023, prior to him seeking reasonable accommodation, that there was a possibility that he would be dismissed on the following day.  Accordingly, I am of the view that Ms Allen had not been made aware that the Complainant’s condition affected his ability to carry out his job when she decided in July 2023 that he had not passed his probation and, consequently, that his employment with the Respondent would be terminated. 

In considering the third tier of the test, I note that, in general, a complainant must prove less favourable treatment as compared with another person in a similar position to the complainant who was treated differently. Therefore, without a comparator, the claim will fail. Given that the Complainant has not nominated a comparator, he has failed to meet the final tier of the test.

Having regard to the forgoing, I am of the view that the Complainant did not establish facts from which it may be presumed that he was treated by the Respondent less favourably than a person who does not have disability or who has a different disability is, has been or would be. Accordingly, I find that the Complainant did not establish a prima facie case of discrimination on the grounds of disability.

Reasonable Accommodation

The second element of the Complainant’s referral which I must decide relates to the claim that the Respondent failed to provide the Complainant, as a person with a disability, with reasonable accommodation contrary to section 16(3) of the Act.

Section 16(3) of the Act sets out the obligations and requirements on employers to take appropriate measures, where needed in a particular case, to enable a person with a disability have access to, participate in or advance in employment. Therefore, for reasonable accommodation to arise, it is necessary for an employee not only to have a disability within the meaning of the Act but also that appropriate measures are necessary in order for that employee to be fully competent and capable of undertaking his/her duties.

Section 16(3) of the Act provides:

“(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. “

Subsection (4) provides:

“(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 reasonablyprovide for himself or herself;”

I must now decide if the Respondent has discriminated against the Complainant by failing to provide him with reasonable accommodation for a disability.

Section 16(1)(b) of the Act provides an employer with a complete defence to claim of discrimination on the disability ground if it can be shown that the employer formed a bona fide belief that the Complainant is not fully capable, within the meaning of the section, of performing the duties for which the Complainant has been employed.  However, section 16(3)(b) of the Act provides that a person with a disability must be considered fully competent and capable of performing the duties attached to a particular post if they could do so with the provision of special measures or facilities provided the provision of such measures would not impose a disproportionate burden on the employer.

In the case of Nano Nagle School -v- Daly [2019] IESC 63 the Supreme Court has provided guidance and clarification regarding the nature of the obligations on an employer to provide reasonable accommodation to a person with a disability under the provisions of section 16 of the Act. In this judgment MacMenamin J. held at paragraph 84 that:

“… s.16(3)(b) explicitly identifies the mandatory primary duty of 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, and to undergo training, unless these measures would impose a disproportionate burden. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thingthat the personmight ordinarily or reasonably provide for himself or herself”.

The Supreme Court acknowledged that if an employee would not be able to fully undertake the duties of his/her role, even on the provision of all reasonable accommodation, then there is no discrimination at issue.

MacMenamin J. returned to this point at par 107 of the judgment where he said:

“Once consultation, or other necessary steps for compliance, have been taken, an employing entity may have to ask itself the ultimate question whether, having explored the modes of accommodation, and if, prudently having consulted with an employee, the position, as defined in s.16(1), is, in fact, capable of adaptation so as to accommodate that claimant, and whether the claimant would be capable of performing that function thus adapted. But it is that “position” or job, not another one. If there is a challenge to this decision, this must be assessed objectively by the tribunal vested with the statutory duty of carrying out such an enquiry, and also vested with the expertise to carry out such assessment. If, on reasonable accommodation, a claimant is unable to fully undertake the duties attached to the position, then the Act provides there can be no finding of discrimination.”

In setting out this test, the Court accepted that “the test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee” and that in most instances “removing all the duties which a disabled person is unable to perform” would inevitably become a disproportionate burden.

The Labour Court has stressed, however, that before coming to that view, the employer would “normally be required to make adequate enquiries so as to establish fully the factual position in relation to the employee's capacity”: Humphreys v Westwood Fitness Club[2004] E.L.R. 296, 300. The Court (whose decision — DEE-7/2003 — was upheld by Judge Dunne in the Circuit Court) went on to say:

“The nature and extent of the enquiries which an employer should make will depend on the circumstances of each case. At a minimum, however, an employer should ensure that he or she is in full possession of all the material facts concerning the employee's condition and that the employee is given fair notice that the question of his or her dismissal for incapacity is being considered. The employee must also be allowed an opportunity to influence the employer's decision.

In practical terms this will normally require a two-stage enquiry, which looks firstly at the factual position concerning the employee's capability including the degree of impairment arising from the disability and its likely duration. This would involve looking at the medical evidence available to the employer either from the employee's doctors or obtained independently.

Secondly, if it is apparent that the employee is not fully capable, section 16(3) of the Act requires the employer to consider what, if any, special treatment or facilities may be available by which the employee can become fully capable. The section requires that the cost of such special treatment or facilities must also be considered.

Finally, such an enquiry could only be regarded as adequate if the employee concerned is allowed a full opportunity to participate at each level and is allowed to present relevant medical evidence and submissions.”

In Shannon Regional Fisheries Board v A Worker EDA 18/2013, the Labour Court said that the general principles set out in Humphreys require an employer to make a bona fide and informed decision concerning a disabled employee's capabilities before concluding that he or she is unable to perform the duties of their employment. The test was an objective one “to be applied by reference to the range of responses to be expected of a hypothetical reasonable employer, faced with similar circumstances, seeking to reach a fair and balanced conclusion having full regard to the right of a disabled person to work and earn a livelihood within the constraints occasioned by their disability”. At a minimum, it required the employer “to fully and properly assess all of the available medical evidence and, where necessary, to obtain further medical advice where the available evidence is not conclusive”.

It is clear, from the extensive legal precedent concerning reasonable accommodation cited above, that the Act places an unavoidable obligation on an employer to carry out an assessment to ascertain if measures can be put in place to enable an employee with a disability to continue in employment before making any decisions to their detriment.

I am of the view that, in order to avail of the protections afforded to it by section 16(1) of the Act so that it is not required to retain an employee with a disability who is not competent, an employer must address the issue of competency in a structured, open way taking full cognisance of the provisions of section 16(3) of the Act. 

The obligation on an employer in this regard is two-fold.  The first duty of the employer is to identify the aspects an employee’s competence which are problematic, preferably in consultation with the employee.   The employer is then required, pursuant to section 16(3) of the Act, to assess if it is possible to put in place any reasonable measures which would ameliorate these competency issues and enable the employee to fulfil their role.  Ideally, such an enquiry should be conducted with the full cooperation of the employee.

I note the Respondent’s assertion the Complainant did not request reasonable accommodation until the final hours of his employment with the Respondent when he already knew that his dismissal was a distinct possibility.

The Respondent referred specifically to the Complainant’s email of 9 August to Ms Allen in which he referred to the fact that he had previously informed the Respondent he was suffering from long COVID and depression and would like to discuss reasonable accommodation at the review meeting on the following day.  In a follow-up email to Ms Allen, the Complainant sought more time for the treatment of his depression and long COVID to improve his performance.  He also sought the provision of assistive technology.

I note the Respondent’s evidence that while the Complainant had notified it that he was suffering from long COVID, he had not previously notified it that he was suffering from depression, nor had he sought reasonable accommodation prior to his email of 9 August 2023.

At the hearing, the Respondent stated that the reason for terminating the Complainant’s employment was the fact that the Client to which he was assigned was no longer prepared to work with him which meant that his position had become untenable and that there was no other work area to which he could be transferred.

I do accept the Respondent’s position that the first time the Complainant sought reasonable accommodation was 9 August 2024 when he knew there was a possibility that he may be dismissed. 

I note that the Complainant emailed the Respondent on 11 August 2023 after he had been notified of his dismissal but prior to its effective date stating:

”You did not consider any reasonable accommodation, not have you sought any engagement with me regarding the impact and duration of my long covid and/or mental health.”

The Complainant went on to state:

“I meet the test for disability under the legislation and therefore, you have a duty to take appropriate measures which should be considered before taking any decision with regard to my employment.”

I am of the view that in light of the Complainant’s emails of 9 August 2023 and 11 August 2023 setting out his disabilities and requesting reasonable accommodation, the Respondent was obliged to make enquiries into the Complainant’s fitness to fulfil the requirement of his role in accordance with section 16 of the Act and the judgment in Humphreys before taking a decision to the detriment of the Complainant. 

In the circumstances, I am satisfied that the decision to dismiss the Complainant on the grounds of competence was taken in the absence of any assessment of his capabilities and whether reasonable accommodation could be put in place to address his shortcomings. 

Accordingly, I am satisfied from the totality of the evidence adduced that the Complainant was discriminated against by the Respondent in relation to his employment when the Respondent failed to act pursuant to section 16(3) of the Act and to assess if reasonable accommodation, within the meaning of the Act, could be put in place to enable the Complainant to fulfil his role with the Respondent before terminating his employment. 

Victimisation

Section 74(2) of the Act defines victimisation as follows:

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to –

(a)      a complaint of discrimination made by the employee to the employer………….

(f)       an employee having opposed by lawful means and act which is unlawful under this Act…….

(g)      an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs”

In Tom Barrett v Department of Defence, the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Act to be made out.   It stated that (i) the complainant must have taken action of a type referred to at paragraphs (a)-(g) of section 74(2) – what it terms a protected act, (ii) the complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.

In the case of the Public Appointments Service v  Kevin Roddy [EDA1019]  the Labour Court held that: “To  be encompassed within the ambit of section 74(2)(b) “proceedings” must come  within the definition as defined by Section 2 under Interpretations where “proceedings” means—(a)  proceedings before the person, body or court dealing with a request or reference under this Act by or on behalf of a person, and (b) any subsequent proceedings, including proceedings on appeal, arising from the request or reference, but does not include proceedings for an offence under this Act”

Under the Act the complainant must prove that the catalyst alleged for the adverse treatment complained of came within the ambit of one of the protected acts referred to at Section 74(2) of the Acts.”

Therefore, in order to maintain a claim of victimisation within the meaning of the Act it is necessary that a complainant demonstrates the connection between his actions in relation to defending entitlements under the Act and the adverse treatment complained of.  From the evidence adduced, it is clear that the first time that the Complainant made a complainant of discrimination was in an email of 11 August 2023 to the Respondent in which he wrote:

“I have suffered disability discrimination in particular but not limited to, a failure to undertake reasonable accommodation.”

The Complainant asserts that acts and/or omissions by the Respondent on 9, 10, 14, 15, 29, 30 and 31 August and 1, 13 and 20 September 2023 and 16 October 2023 were acts of victimisation and/or harassment.

Given that the Complainant first raised a complainant of discrimination on 11 August 2023, I am of the view that the harassment which is alleged to have occurred on 9 and 10 August 2023 is not covered by this complaint as it occurred prior to a complainant of discrimination and, therefore, could not be construed as a retaliatory action.

The Complainant asserts that the Respondent’s letter of 14 August 2023 in response to his email of 11 August 2023 was an attempt to dissuade him from exercising his rights.  From my careful reading of this letter I cannot see how it can be interpreted as such.  In fact, in the letter of 14 August 2023, the Respondent advised the Complainant that his email of 11 August 2023 could be considered as a grievance.

The Complainant further submits that he was victimised by the Respondent on 15 and 29 August 2023, but as no communication from the Respondent to the Complainant dated 15 or 29 August 2023 was opened at the hearing, I must find that that Complainant was not victimised by the Respondent on 15 or 29 August 2023.

The Complainant asserts that the Respondent’s refusal to permit him to bring his trade union representative to his grievance hearing as stated in the Respondent’s emails of 30 August 2023 and 1 September were acts of harassment.  In the email of 30 August 2023, the Respondent stated:

“Our grievance policy states that you may bring a college with you.  This does not include an option to bring an external person to the meeting.”

I am of the view that, while the Complainant did not like the response he got from the Respondent, it cannot be construed as an incident of harassment when the Respondent was simply restating a provision of its grievance policy which would apply to all of its employees, not just the Complainant.

The Complainant further submits that he was victimised by the Respondent on 31 August 2023, but as no communication from the Respondent to the Complainant dated 31 August 2023 was opened at the hearing, I must find that that Complainant was not victimised by the Respondent on 31 August 2023.

The Complainant’s claims of victimisation on 13 September 2023 relates to the Respondent’s refusal to conduct his grievance hearing remotely.  The Complainant has not adduced any evidence of a causal link between the Respondent’s refusal and his complaint of discrimination.

The Complainant’s claims of victimisation on 20 September 2023 relates to the fact that his grievance meeting did not go ahead and that his allegation that the Head of Litigation, who was due to conduct the hearing, spoke angrily about him.  The Complainant accepts that he was 36 minutes late for the hearing which was scheduled for one hour.  The Complainant has not adduced any evidence of a causal link between the meeting not proceeding and his complaint of discrimination.

The Complainant has not adduced any evidence of a causal link between his non-attendance at a rescheduled grievance hearing on 16 October 2023 and the Respondent’s refusal to accede to his request to hold the hearing in his absence with his complaint of discrimination.

Based on the totality of the evidence adduced, I find the Respondent has not victimised the Complainant in terms of section 74(2) of the Act in terms of alleged adverse treatment.  

Harassment

Harassment is defined in section 14A(7) of the Act as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Section 14A(2) provides a defence for an employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects.

In his complaint of harassment, the Complainant relied on the same set of facts as he relied on in his complainant of victimisation.  It is well-established, and underpinned by jurisprudence, that a Complainant cannot recover more than one amount of compensation in relation to matters arising from the same set of facts. As the Complainant did not refine his complaint at the hearing, I find that this complaint is not properly before me.  Accordingly, I find the Respondent has not harassed the Complainant in terms of section 14A of the Act in terms of alleged adverse treatment.  

Having considered all of the evidence, both written and oral, adduced at the hearing of this complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Act, 1998, as amended. I find that:　

(i)      the Respondent did not discriminate against the Complainant on grounds of disability in terms of section 6(2) of the Act, in respect of discriminatory dismissal contrary to section 8 of those Act.  Accordingly, I declare that this complaint is not well founded.

(ii)    the Respondent did discriminate against the Complainant on grounds of disability in terms of section 6(2) and contrary to section 8 of those Acts in respect of a failure to provide him with reasonable accommodation for his disability within the meaning of section 16(3) of the Act. I declare that the complaint is well founded, and I order the Respondent to pay the Complainant €5,000 in compensation.  I also order that within 3 months of the date of this decision, the Respondent must review its policy on reasonable accommodation and provide training on the policy to all of its employees in a staff management role.

(iii)   the Respondent has not victimised the Complainant in terms of section 74(2) of the Act. Accordingly, I declare that this complaint is not well founded.

(iv)   the Respondent has not harassed the Complainant in terms of section 14A of the Act. Accordingly, I declare that this complaint is not well founded.

The Complainant submits that on 14 August 2023, the Respondent provided him with written notice of his dismissal (the effective date of termination was 17 August 2023). The Respondent did not pay the Complainant’s full notice in lieu despite saying it would. 

The Respondent submits that it gave the Complainant verbal notice of the termination of his employment on 10 August 2023 and that one week’s notice was paid up to 17 August 2023.

The Respondent submits that the Minimum Notice & Terms of Employment Act 1973 (the ‘Act’) does not require that notice has to be given in writing.  Accordingly, the Respondent submits that the Complainant was paid his minimum notice in accordance with the Act.

Section 4(2)(a) of the Minimum Notice & Terms of Employment Act 1973, as amended, obliges the Respondent to give the Complainant one weeks’ notice of the date of termination of the contract of employment on the basis of his service.

The Complainant asserts that he should have been provided with written notice that his employment would be ending on 17 August 2023.

The question of the necessity for written notice was addressed in the Supreme Court judgment in Bolands Ltd (In Receivership) v Ward, (1988) I.L.R.M. 382where Henchy J. found that the form of notice is not provided for in the Act of 1973 and does not even require it to be in writing:

“… The Act is concerned only with the period referred to the notice, and it matters not what form the notice takes so long as it conveys to the employee that it is proposed that he will lose his employment at the end of a period which is expressed or necessarily implied in that notice. There is nothing in the Act to suggest that the notice should be stringently or technically construed as if it were analogous to a notice to quit. If the notice actually given—whether orally or in writing, in one document or in a number of documents—conveys to the employee that at the end of the period expressly or impliedly referred to in the notice or notices it is proposed to terminate his or her employment, the only question normally arising under the Act is whether the period of notice is less than the statutory minimum …”

It is clear from the above, that while notice is not required to be in writing, it must be unambiguous.  The employee must be in no doubt that his employment will finish on a particular date.  I am of the view that the Complainant was properly on notice that his employment would end on 17 August 2023 as he had been informed of same at his probation review meeting on 10 August 2023.  I find, therefore, that this complaint is not well founded.

I declare that this complaint is not well founded.

Discriminatory dismissal – Reasonable Accommodation – Victimisation – Harassment – Minimum Notice