Complainant

Respondent

Parties

Howard  Fox

Office Of Public Works

Representatives

Stephen O’Sullivan, BL     Gabrial Toolan Toolan & Sons, Solicitor    Maria Cullen (support person)

Emma Casey, BL Triona Feeney, Solicitor CSSO  F M, OPW, HR (attended Day 1)  Dr C K, Line Manager, OPW (attended Day 1 & 2)  Mr P F (OPW, witness for company. Attended Day 2)

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00044263-001

21/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00044263-002

21/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00044263-003

21/05/2021

There are three claims attached to this case.

CA-00044263-001:  Complaintfor adjudication pursuant under Section 77 of the Employment Equality Act, 1998 - 2015

The Complainant stated he was discriminated again by reason of his disability and the Respondent treated him unlawfully by discriminating against him by dismissing him. He was dismissed on 21 December 2020.

CA-00044263-002:  Complaintfor adjudication pursuant under Section 77 of the Employment Equality Act, 1998 – 2015

The Complainant stated he was discriminated again by reason of his disability and the Respondent treated him unlawfully by discriminating against him in relation to the terms of conditions of his employment.

CA-00044263-003:  Complaintfor adjudication pursuant under Section 77 of the Employment Equality Act, 1998 – 2015

The Complainant stated he was victimised by reason of his disability and the Respondent treated him unlawfully by discriminating against him in dismissing him.

The Barrister, Stephen O’Sullivan for the Complainant confirmed they were withdrawing the victimisation claim CA-00044263-003so only Claims CA-00044263-001 and CA-00044263-002 are continuing.

The Barrister for the Complainant stated the claimant was employed by the Office of Public Works (POW) as a Botanist (Grade III). He stated he generally worked from the National Botanical Gardens in Glasnevin, Dublin. He stated he has a Bachelor of Arts in Botany from Trinity College which he obtained in 1992. He stated in 1998 he began working as a full-time botanist for the OPW.

The Barrister for the Complainant, Stephen O’Sullivan stated Mr Fox’s role included inter alia taxonomic identification services across all Botanical Groups; Curation of the Fungal Collections in Irish National Herbarium; Fieldwork to generate reports and material, particularly to fill gaps in the Irish National Herbarium Collections; Preparation of reports and documents; Facilitating tours; Researching and presenting research at national and international events; organising of visits to Ireland by overseas groups interested in excursions to particular areas.

He stated the claimant worked flexi time. He stated he was expected to work a minimum of 139 hours per 4-week period and was expected to work core hours but had flexibility outside of this. He stated Mr Fox was expected to log in and out for work using a PC and using a Flexitime Computer package.

The Barrister, stated in 2016, following an investigation by the Employer, a recommendation was made to dismiss the claimant for unauthorised absences and misuse of the clocking system.

He stated upon appeal, the CSDAT recommended by decision 19/7/18 that the dismissal be reduced and the following sanctions were imposed: -

“The Board recommends that a more appropriate sanction for Mr. Fox is:

A formal written note placed on Mr. Fox's personnel file for a period of 2 years

Debarment from competitions for a period of 5 years and

A reduction of Mr. Fox's salary to the 8th point of the salary scale (being €47,384).

The claimant also gave an undertaking to comply with rules and procedures in relation to his role with the OPW.

The Barrister contended this was not stated to be a final written warning and did not amount to such. Therefore, he stated by the time new allegations arose against the claimant, the next step in the procedure was a final written warning, not dismissal, but the Employer jumped straight to dismissal.

The Barrister stated on 16 November 2018 the claimant sent an email to F M in HR. He stated his Line Manager (C K) had said the claimant was sleeping during work and asked him to arrange to see the CMO. He stated the claimant sent a letter to F M in HR and said his Line Manager was discriminating against him and had over simplified matters. He suggested he see his own GP instead, which F M agreed to.

The Barrister stated the claimant met with S L, Disability Liaison Officer on 7 July 2020 and then, on her suggestion, sent an email to her on 20 July 2020. He stated this contained a number of complaints of discrimination during the employment and suggested reasonable accommodations that could be afforded.

The Barrister stated the complaints included that he was being treated differently from colleagues and was discriminated against in the following ways (the numbering correlates to the numbering in that letter);

i.                 His office had been changed

ii.                He did not have keys to the Herbarium

iii.               He was not allowed avail of the assistance of others including interested volunteers, students and scientists

iv.               He was on a payment in arrears system, causing him hardship

v.                He was excluded from senior meetings

vi.               He was not accommodated when he proposed an event or lecture

vii.             He did not have freedom to carry out fieldwork away from his office

viii.            He was not allowed attend conferences and meetings

ix.               He was ordered to resign from Irish National committees by his Line Manager

The Barrister stated the specified reasonable accommodations he suggested were:-

i.                 Working remotely

ii.                A convenient, reliable method of logging in and out each day

iii.               If he missed a clock, he should be contacted and if he could not be contacted then his contact person, M C, should be contacted.

iv.               When he was out sick, he be kept informed of work matters by email

v.                Proper training for his colleagues, including HR staff and PeoplePoint staff, for working with someone who has a mental health disability.

vi.               A mentor system or check-in when returning to work after illness

vii.             Having an appropriately trained advocate or other suitable person to be present at meetings

viii.            If a person was sent a list of dates that have not been fully resolved by the time of the reconciliation exercise, the exact dates and times under review be sent to them by HR, not a synoptic table.

ix.               If there was a change in policy for reporting absences due to illness, this should be shared with the supporter/carer/contact person of the employee

The Barrister stated of these, S L Disability Liaison Officer said v. and vi. were good suggestions of reasonable accommodation and effectively said that the other matters were not matters of reasonable accommodation. He stated it is not known if the two matters agreed to by S L were acted upon.

The Barrister stated it is clear that if the allegations the claimant made were true, there was a case for discrimination worth investigating under the relevant policy. He stated in relation to many of the complaints made by the claimant, they are effectively refuted by S L Disability Liaison Officer. He stated it was not suggested to the claimant that he specifically invoke the grievance procedure but there is a suggestion of this re item iii. and v.

The Barrister stated following a period of long-term sick leave between 12 February 2019 and 11 February 2020, the claimant resumed work having been certified by the CMO as fit to work. He stated he was not made to feel welcome by his Line Manager. He stated his office (from 1998 to 2007) was occupied by a new employee. He stated his replacement office was shared and not well ventilated. 2 years previously his keys to the Herbarium were taken away from him, unlike other similar staff, and that situation continued.

The Barrister stated insofar as the claimant had a return-to-work meeting with his Line Manager, his Line Manager did not welcome him back to work and had not been in touch with him during the sick leave. He stated his Line Manager commenced the meeting by criticising the claimant’s friend and carer M C who had represented the claimant’s interests at different times, which upset the claimant.

The Barrister stated the claimant was monitored by his Line Manager from 11 February 2020 to 31 March 2020 and allegations were made in respect of this period. A disciplinary meeting was held on 9 July 2020. He stated the allegations were of unauthorised absences, late attendances and failure to engage with the clocking system during the first quarter of 2020. He stated on 17 July 2020, a recommendation was made to dismiss the claimant by F M of HR, which was then appealed to the CSDAT.

The Barrister stated the claimant put in a Statement to the CSDAT through his solicitor on 31 August 2020 where he specifically addressed the clocking discrepancies in relation to the various dates in the first quarter 2020. The Barrister stated the Employer put in a Counter Statement 18 September 2020. He stated the claimant hired a barrister who tried to put in a further written statement soon before the CSDAT hearing but this was not permitted, albeit the same points were made at oral hearing before the CSDAT.

The Barrister stated the allegations by the Employer against the claimant were effectively reduced down in the CSDAT to failure follow the correct procedure in relation to time and attendance.

The Barrister stated the claimant raised a number of excusing factors in the CSDAT, summarised as follows: an Employee logs in to FlexiTime (a software package) via their PC in work to clock in or clock out. An Employee can help achieve a reconciliation on FlexiTime by entering data on FlexiTime, although the Employee did not know how to do this at the material time. A problem with the PC, with the internet or with FlexiTime could make this difficult or impossible.

The Barrister stated there were significant problems with the Clocking System during this first Quarter 2020, and in particular on 11 February 2020, 12 February 2020, 13 February 2020, and 14 February 2020. In para. 12.2 of the Counter Statement, the Employer accepted the clock system was not working on 13 February 2020 and at lunchtime 28 February 2020, at lunchtime 3 March 2020. It is clear then that there were problems with the Clocking System on material dates. He stated the claimant’s absences from work were medically certified.  The Barrister stated the CSDAT made a decision dated 5 November 2020 to uphold the recommendation for dismissal and the dismissal took effect from 31 December 20.

The Barrister stated the claimant has Schizophrenia and his Employer was aware of his condition. I was given detailed information regarding his medical condition which I am not summarising for confidentiality reasons in this decision but have taken into account.

He confirmed that the Employer stated: -

“Until the recommendation to dismiss, the claimant had not made us aware that he has a disability. The OPW has never received a request to make reasonable accommodation for Howard. “

The Barrister stated this is refuted. He stated there is clear evidence that the Employer was aware of the claimant’s disability looking at the previous CSDAT decision, the CMO letter 5 February 2020 which recounted his condition, the meeting notes of 9 July 2020 and paragraphs 1.4. 11.2., 20.20 of the Counter Statement

The Barrister stated the claimant was dismissed in circumstances amounting to discrimination on the disability ground. He stated the employer did not provide reasonable accommodation to the claimant to enable him to remain in employment.

He stated the claimant also relies on s.8.4 of the EEA. He stated the Employer applied the same rules to the claimant, not taking into account his mental health issues.

The Barrister stated reasonable accommodation should have included a phased return to work which would have helped him re integrate after a long absence due to sick leave.

He stated the Employer should have had the claimant assessed by the CMO before dismissing, to see whether there were medical issues which were affecting him at the material time. The Employer and the CSDAT showed a misunderstanding of the illness. They presumed that when the claimant returned to work, he was unaffected by the illness. 

The Barrister stated the Employer’s and the CSDAT’s finding that the claimant’s illness was irrelevant to the allegations was flawed. 

The Barrister stated the allegations leading to the dismissal are in respect of his first two months back to work (February and March 2020) after a lengthy period of serious mental ill health. He stated the Employer would not tolerate the claimant’s continued employment on his return and was intent on not letting him settle back in.

The Barrister stated the claimant cited further documents before the CSDAT and asked that the CSDAT request them.  He stated some of the documents cited were not requested or seen by the CSDAT: -

He stated evidence the claimant reported to CIT (the IT Department of the Employer) on 14 February 2020 that his computer was not working and was not repaired until 17 February 2020.

He stated a note from CIT or HR or the relevant contractor who managed the clocking system, to say what problems existed. if any, existed in relation to the clocking system in the relevant period and on 11 February 2020, 12 February 2020, 13 February 2020, and 14 February 2020. 

He stated the claimant requested to put in a medical report to CSDAT but was not allowed time to do so and we had no report ready on the day of hearing.

The Barrister stated an allegation was made in the Counter Statement which were not put to the claimant in the investigation or disciplinary process. 

The Barrister stated allegations were made during the course of the CSDAT hearing that not taken into account in the initial recommendation to dismiss, such as the allegation that the claimant had not engaged with the clocking system since Quarter 1 2020. He stated the information was not contained in the Counter Statement, no detail was provided on this and it was clearly taken into account by the CSDAT.

The Barrister stated the Code of Conduct was not complied with by the Employer (Code paragraphs. 35, 37, 39 and 40). This Code of Conduct has a Statutory footing, it being implemented by SI.

The Barrister stated the claimant should not have been treated as having been on a Stage 3 Final Written Warning (hereinafter FWW) as at Q1 2020.

The Barrister submitted further legal points to be taken into consideration referring to extracts from the Employment Equality Act 1998 at HF1 and extracts from the Employment Equality Law Bolger, Bruton, Kimber; 2nd Ed. 2022 at HF2.

He stated arising from this we say the following as arising from the law

The Claim herein is for direct discrimination.  The Employer operated rules of attendance and timekeeping (hereinafter the Rules) in Q1 2020 to the claimant, as if the claimant did not have a relevant disability.  They cited 2 other past employee’s.  These are persons who did not have Schizophrenia and could easily comply with the Rules.   In the alternative, the employer engaged in indirect discrimination. The Employer operated Rules on the claimant in Q1 2020 which put the claimant at a disadvantage compared to someone who did not have Schizophrenia.   In the alternative, the Employer failed to provide reasonable accommodation.

The Barrister stated further points we make

a.      The Employer was wrong to ignore the claimant’s disability in assessing breach of the Rules for Q1 2020 (HF2 para 7-07).  The operation of the same Rules of the claimant, ignoring the disability, was unlawful (HF2 para. 7-88).

b.      In one case, the CJEU indicated that the operation of a rigid absence policy to a person who had a degenerative joint disease was potentially discriminatory (HF2 para. 7-32).

c.      In another case, the CJEU determined that applying redundancy criteria including productivity and absenteeism was potentially indirectly discriminatory to an employee who had a disability (HF2 para. 7-33).

d.      The Employer treated the claimant unsympathetically on his return to work after 1 year’s absence due to a disability, which amounts to discrimination. In one Irish Labour Court case, the unsympathetic treatment of an employee on return from psychiatric illness was held to amount to constructive dismissal (HF2 para. 7-90).

e.      The Employer shared an onus with the employee to determine what reasonable accommodation was required, if any (HF2 para. 7-142).

f.       The Employer should have considered reasonable accommodation including a return to work on a phased basis, part time hours, working from home and/or a career break. (see Hf2 PARA. 7-555).

The Barrister outlined what the claimant seeks

i.       Re-instatement or re-engagement

ii.      In the alternative compensation

iii.     Direct a course of action

iv.     If the claimant loses the EFA claim, we seek leave to bring a UDA claim pursuant to s.101.2.b of the EEA.

The Barrister stated the above evidence and claim is linked to disability reference dismissal.

The Barrister stated in relation to the two other claims CA-00044263-001, Conditions of Employment and CA-00044263-002, Victimisation the Barrister for the Complainant stated that the matters in paragraph 8, 9 & 10 constitute discrimination during his employment and they support his claim in that regard.

Mr Howard Fox, Complainant gave evidence under affirmation. He confirmed his qualifications. Mr Fox confirmed he started in February 1998 and the role he did.  He confirmed he published papers in his field.

Mr Fox stated in July 2018 a dismissal was reduced to a warning for clocking breaches. He stated the clock system was introduced in 2012. He stated you clock four times a day. He stated the issue was re-conciliation of clock and it caused a significant amount of stress.  He stated he was also reduced in salary as a result of this process.   Mr Fox stated in July 2018 he emailed J T reference mental health stigma. Mr Fox stated he sent other emails also to OPW staff reference his mental health.

Mr Fox stated he emailed S L in July 2020 who was the Disability Liaison Officer to say they UK procedures were better than OPW HR and that information would be helpful to improve things for him.

Mr Fox stated his office wasn’t fit for purpose.  He stated the offices changed in 2007.  He stated he mentioned in the email to the Disability Liaison Officer regarding the herbarium also.

Mr Fox’s evidence continued to say he didn’t have a key to his workplace and normally you would have this.  Mr Fox stated he wasn’t invited to management meetings since 2010.

He stated he proposed event that fell through and wasn’t doing field work.  He stated he was doing cataloguing and report writing mostly. He stated he wasn’t invited to attend meetings/conferences on behalf of OPW.  He stated he wasn’t allowed to go to National committee meetings. He stated it was a minor thing overall.

Mr Fox suggested working remotely was a solution as it would reduce stress and meetings in managing his mental health.  He stated he suggested also if he missed clocking a person, MC, on his behalf should be contacted as he wanted to know which clocking wasn’t done correctly as you couldn’t see if clock was successful at the time.

Mr Fox stated S L, Disability Liaison Officer accepted that training for colleagues with a mental health issue was a good idea.  He stated he also suggested a mentor system on return to work after absence.  He stated no mentor was provided after his return in February 2020.

Mr Fox stated when defending the allegations in 2020 at the disciplinary he was doing so on Zoom on his own.  Mr Fox stated he was out sick and hospitalised in Sligo and then was convalescing.  He stated he saw the CMO before his return in February 2020 and he confirmed he was “well and fit for work”.

Mr Fox stated he had intended to apply for career break before going out sick during February 19 and February 20. He stated he isn’t sure if that process started it was only raised in discussion with CMO in 2020 but no formal application started.

He stated he returned to work in February 2020 after 1 year absent and it was very stressful as she was unused to his line manager interactions. He stated there was a rebuke and his line manager said he was rude and he didn’t think he was, as he was summoned to a meeting and the tone was upsetting. He stated he did a back to work meeting with Mr K and he wasn’t well prepared for that meeting and he doesn’t remember just remembers the tone of the meeting.

Mr Fox stated on 9 July he was called to a disciplinary meeting for Q1 breaches of clock system.  He stated sometimes his PC wasn’t on; sometimes he was anxious; nothing was particularly unusual reference his stresses with it.

Mr Fox stated the disciplinary meeting resulted in a recommendation of dismissal on 17 July 2020. He stated he was working remotely and he was representing himself. He stated he is not in a Trade Union as far as he’s aware. He stated he called FORSA and they didn’t give him a representative for the July meeting. He stated he had an issue reference two car breakdowns and it was difficult to commute as a result.  He stated he got legal representative for the appeal and they outlined his appeal grounds. He stated the CSDAT upheld the dismissal on 5 November 2020.

Mr Fox stated in quarter 1 he enquired of IT if the clock was working and it was only until mid-April 2020 that he got functioning Wi-Fi.  He stated he was letting HR know reference this also and he got a telephone to enable clocking and he had to travel to neighbour to get Wi-Fi.

Mr Fox stated regarding medical certs he sent them via email to OPW. He stated one mentioned sleep apnoea.   Mr Fox stated he got Schizophrenia in 2004 and was hospitalised due to psychosis a number of times.  He stated it is a huge shock and set back to doing your job and is debilitating when you are pre ill and ill its different to function at level of complexity and procedural detail.

Mr Fox stated in February 2020 when he had returned to work to end March, he needed assistance to comply with clock system and a simpler system of clocking and ideally write it down instead of using PC to clock.

Mr Fox stated he also suggested analogue system to make labels would have made life easier also.  He stated he said you have to live with schizophrenia and get on with the job as there was no change on his return.

Mr Fox stated between 9 July and 17 July it was a quick disciplinary process and decision to dismiss was very abrupt and he didn’t understand gravity of what was being said.  He stated he was unclear.  He stated he needed help by others to interpret it.

Mr Fox stated he felt it was disproportionate to end public service botany career on the arguments they were making.

Mr Fox stated since termination he started botanical identification business and he earned €9,000 gross per year.

In cross examination the Barrister for the Respondent, Emma Cassidy BL stated that she was cross examining the witness to ask was there any medical cert or confirmation that the Complainant, Mr Fox had Schizophrenia.  Mr Fox stated no there was none.

Regarding his cert in 2020 which confirmed he was fit to return to work via own doctors and via Chief Medical Officer. It was stated none of these medical documents mentioned Schizophrenia. 

Mr Fox stated he didn’t apply for a career break but he did mention it to CMO in Spring of 2020.

Mr Fox stated there was some absences when he had returned in February 2020 and HR, Ms M contacted him regarding these absences.

Ms M, HR referred to a call on 27 February she had with the Complainant via email. She stated there were another few emails from her regarding his absences and his attendance in general.

Mr Fox referred to the zoom call reference disciplinary meeting it was required due to Covid precautions at the time.

Mr Fox stated in relation to the appeal in September 2020.  He stated the appeal panel asked him why had he not spoken to his manager reference issues with clock system and he agreed it was a lapse on his part. He stated there was minutes of this meeting to reflect this. He stated he accepted that was noted in minutes.

Mr Fox stated he had been informed that he would have to put these clock issues in writing to his Line Manager and he didn’t do that.

Mr Fox stated he confirmed to the panel he didn’t raise his disability specifically to the Disability Liaison officer.  He stated he felt he was doing a service to liaise with them.

Mr Fox stated when asked by the panel reference reasonable accommodation he said he couldn’t answer a question of what he needed.  He stated he felt it was a difficult question. He stated he answered an analog clock could have helped now.

Mr Fox stated the appeal panel asked him why he hadn’t submitted any medical documents to confirm his schizophrenia.  He stated the reason was that medical documents were difficult to collate.  Mr Fox stated he took it he had done that already.

Mr Fox stated the letter of 17 July to the Disability Liaison Officer was sent in after the disciplinary hearing of the 9 July which was going on parallel to this.   Mr Fox stated the concept of reasonable accommodation only became aware to him then.

It was stated there is a letter dated 2 September from HSE and OPW, saying they never saw this letter to-date.  That was accepted by both parties as the case. 

Received the third submission from the Complainant’s representative that was emailed in.

The Complainant’s representative stated the reason for this is they only got these documents in data access request after Day 1 of the hearing.

The Respondent stated the employer have never seen the documents from the Chief Medical Officer.  The Respondent stated that there is no reason for the delay and there is no medical evidence either to state this.

The Complainant stated the emails from that data access request support the facts that management knew the Complainant was unwell at that material time and they also stated they expressed concern for Mr Fox’s health.

The employer stated they then went down the disciplinary route instead of sending him back to the CMO/Chief Medical Officer.

The Respondent representative, Emma Casey, BL submitted their submission.  The Respondent representative stated these submissions are furnished on behalf of the Respondent in respect of a claim brought for alleged breach of the Employment Equality Act 1998 (“the Act”).

The Respondent representative stated the Respondent denies the totality of the allegations contained in the Complaint Form and in particular refutes any allegation that the Complainant was discriminated against, not provided with reasonable accommodation and/or victimised as alleged or at all.

The Respondent representative stated the factual scenario asserted by the Complainant is disputed and the correct factual scenario and context will be borne out in documentation appended below and in oral evidence proffered by the Respondent at the hearing of the matter. She stated it is also respectfully submitted that at the outset that there are many accusations contained within the narrative of the Complaint Form that are clearly manifestly untrue upon review of the supporting documentation furnished by The Complainant as well as with regard to the factual scenario.

The Respondent representative stated the Complainant commenced work with the Respondent in and around 1998 in the position of botanist. In and around 2013 the Complainant’s attendance at work, in particular unauthorised absences, and other issues came to the attention of the Respondent to the extent that a disciplinary process was commenced in 2015 pursuant to Circular 14/2006.

The Respondent representative following the completion of an external investigation, in and around 5 July 2017 the Personnel Officer at the time recommend dismissal. She stated, however, on appeal, in July 2018, the Civil Service Disciplinary Appeals Board overturned this recommendation stating that dismissal would be disproportionate. She stated the Appeals Board instead recommended that: -

a.  a formal written note be placed on the Complainant’s personnel file for a period of 2 years i.e. a final written warning;

b.  he be debarred from competitions for a period of 5 years; and

c.   his salary be reduced to the 8th point of the salary scale.

She stated, the Complainant accepted the recommendations of the Appeals Board as part of a combination of reduced sanctions in lieu of dismissal. She stated this reduced suite of recommendations was directly influenced by the Complainant’s formal and clear undertaking that he would comply with the rules and procedures in relation to his role with the Respondent. She stated this undertaking is also referred to in his Complaint Form to the WRC.

The Respondent representative notwithstanding the foregoing, by the end of the fourth quarter of 2018 (i.e. the quarter after the imposition of the suite of sanctions) the Complainant had already failed to comply with the clocking system, had accrued 9.5 days of unauthorised absences, 25 core time infringements and 30.48 hours of flexi clock discrepancies together with 3 days of approved annual leave and 11.5 days of certified sick leave. She stated, moreover, the Complainant’s line manager advised HR in and around November 2018 that the Complainant had been regularly falling asleep at his desk.

The Respondent representative stated on 30 January 2019 HR wrote to the Complainant giving him notice that a formal meeting would take place on 7 Feb 2019 to review his attendance for the last quarter of 2018 i.e. after he undertook to comply with the recommendations of the Appeals Board. She stated, unfortunately, the Complainant did not attend the meeting nor did he advise any personnel with the Respondent that he would/could not attend nor did he seek to rearrange the meeting. She stated having received no communication from the Complainant in the interim, HR wrote again to him on 13 February 2019 to advise him of the seriousness of unauthorised absences and issued a final written warning that would be placed on his personnel file for a period of 18 months in accordance with the relevant circular. She stated, moreover, this correspondence expressly noted that “this is your final written warning and no further warnings will be given”.

The Respondent representative stated, thereafter, the Complainant did not attend work at all for approximately one year but he did attend the CMO in May 2019 as required. She stated the Complainant provided medical certificates covering his absence until 20 January 2020 at which point his GP confirmed that he was fit for work, none of the medical certificates mention schizophrenia. She stated the Complainant also attended the CMO on 5 February 2020, at the request of the Respondent, who confirmed in a report of even date that the Complainant was fit to work. She stated neither the GP nor the CMO indicated that the Complainant could not interact with the flexi-clock or that he needed any accommodation for a disability.

The Respondent representative stated on 11 February 2020 the Complainant returned to work however he arrived late and did not engage with the flexi-clock. She stated this persistent pattern of not arriving on time, not engaging with the flexi-clock and/or leaving work without permission continued throughout 2020 notwithstanding the fact that the Complainant was contacted by HR on a number of occasions offering him support, reminding him that he was on a Final Written Warning and that further disciplinary action could be taken, up to and including dismissal if a significant improvement didn’t occur. She stated a formal meeting was arranged for 2 July 2020 however the Complainant did not attend and the meeting was rearranged for 9 July 2020.

The Respondent representative stated on 9 July 2020 the Respondent held a disciplinary meeting with the Complainant to discuss the continued issues noted as far back as 2013 and which the Complainant had formally undertook to ameliorate following the Appeals Board decision not to uphold his dismissal in July 2018.

The Respondent representative stated on 17 July 2020 a recommendation was made to dismiss the Complainant. She stated the Complainant again appealed his dismissal to the Appeals Board, a distinct panel, following a request for an extension of time to appeal. She stated in advance of the hearing the Respondent submitted Counter Statement in accordance with the relevant circular. She stated a hearing took place on 30 September 2020 and the Complainant was accompanied by Junior Counsel and his new solicitor.

The Respondent representative stated the first time that a connection between the Complainant’s stated disability, schizophrenia, and his alleged inability to interact with the clocking system was raised was during the Appeals Board hearing on in September 2020 and no medical confirmation or report was provided even then nor has it been provided to date. She stated therefore, it is the Respondent’s firm position that the Complainant had not made it aware, with reference to medical confirmation or otherwise, of the existence of this specific disability and/or that this disability was impacting his work and/or that he required accommodation for this disability at all or specifically in respect of the clocking system prior to its decision to dismiss him in July 2020. She stated, indeed, when questioned by the Appeals Board as to why he had not raised this alleged issue about the clocking system at all with his managers he replied that it “was a lapse on his part”. She stated moreover, when the Appeals Board asked the Complainant what accommodations he required even at that late stage he advised that he couldn’t answer the question.

The Respondent representative stated in and around 5 November 2020 the Appeals Board determined that the dismissal should be upheld and noted in particular that the reasons proffered by the Complainant to explain his attendance pattern had only been raised for the first time before that Board notwithstanding the significant number of opportunities that had been offered to him previously by the Respondent and in particular prior to the disciplinary hearing on 9 July 2020. She stated, furthermore, the Board highlighted that the CMO report had certified the Complainant as fit to work without accommodations, that the Complainant himself insisted that he was fit to work and at no time had he sought any reasonable accommodations.

The Respondent representative stated for the sake of completeness, following a meeting on even date the Complainant wrote to the Respondent’s disability liaison officer, Ms. S L, Disability Liaison Officer on 7 July 2020 outlining a list of the matters that they had discussed. She stated contrary to the claims in the Complaint Form, none of the claims highlight alleged acts or complaints of discrimination on the ground of disability as defined by the Acts or at all nor do they suggest accommodation as defined by the Acts or at all. She stated, moreover, the Complainant made no reference to his meeting with Ms. L during the disciplinary meeting on 9 July, only two days later when asked if he wanted to add anything to the issues discussed the only matter that he wanted to raise pertained to medical certs for a period in 2018.

The Respondent representative stated at the outset it is respectfully submitted that the Complainant’s dismissal arose in circumstances unrelated to his disability and he was afforded a robust disciplinary process, a full appeal and at all times benefitted from legal advice. She stated the Complainant has advanced complaints of discrimination on the ground of his disability, failure to provide reasonable accommodation as well as a complaint of victimisation. She stated the disability in question is schizophrenia. She stated the Respondent denies the totality of the allegations and respectfully submits that the detailed factual and chronological background above together with the relevant appendices, clearly demonstrate that the complaints are simply untenable in fact and at law.

The Respondent representative stated it is respectfully submitted that the Complainant has conflated discrimination with the Respondent’s reasonable requests that he provide reasons for absence, not absent himself from work without permission and engage with the clock in system, requests with which he undertook to comply. She stated this is notwithstanding the exceptional flexibility extended to the Complainant by the Respondent who continually offered support despite the Complainant’s consistent failure to meet the terms he agreed, basic tenets of his employment, without reference to any medical documentation advising that he could not comply or that he needed accommodation in order to comply, and where he failed to even turn up to meetings to discuss the issues arising.

The Respondent representative stated additionally, the Adjudication Officer is respectfully requested to note from the chronology and appendices that the first time that the Complainant raised the fact of his disability, schizophrenia, and/or that this said disability prevented him from interacting with the clock in system was after the disciplinary meeting on 9 July 2020 and after the decision to dismiss him had been taken i.e. during the Appeal Hearing of that decision. She stated, moreover, even at that late stage, despite having a full legal team, no medical documentation was submitted to support the position advanced by the Complainant in that regard.

The Respondent representative stated therefore, any allegation that any dismissal could have arisen due to his disability or that any reasonable accommodation was not provided in relation to same in circumstances where the Complainant did not even raise the fact of his disability and in particular his alleged need for accommodation in respect of the clocking system prior to the Appeal Hearing is clearly unstateable as a matter of fact and law.

The Respondent representative stated moreover, for the sake of completeness, it is notable that the Complainant appears to seek to challenge the process adopted at the Appeal Hearing. She stated this is outside the jurisdiction of the WRC and in particular any discrepancies in that regard which are denied cannot be used to ground a retrospective complaint of discrimination on the ground of disability, reasonable accommodation and/or victimisation. The Respondent representative stated if the Complainant wished to legitimately challenge the conduct of the Appeal Hearing there was an appropriate legal mechanism available to him at the material time and he had access to legal advice accordingly.

The Respondent representative stated having regard to the totality of the foregoing and in the context of the requirements of Act, it is pertinent to note that the Complainant carries significant legal burdens in respect of sections 6(1) and (2) vis à vis section 85A.

The Respondent representative stated in ease of the WRC, the Respondent relies on the relevant jurisprudence as applied to the facts of this case contained in the decisions of Minister for Education and Science v A Worker [EDA 087] and Southern Health Board v Mitchell [2001] ELR 201 respectively. The Respondent representative stated the Respondent also relies on Valpeters v Melbury Developments, EDA0917, wherein the Labour Court determined that: -

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that The Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on The Complainant and the language of this provision admits of no exceptions to that evidential rule. In this case it was submitted that The Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was 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.”

The Respondent representative stated finally and for the sake of absolute clarity, in Graham Anthony & Company Limited v Mary Margetts [EDA 038] the Labour Court confirmed that: -

“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 occurred.”

The Respondent representative stated the Complainant must therefore first establish a prima facie case of discrimination, in a twofold process that: (1) he has a disability and (2) he was subject to discriminatory treatment. She stated the mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not enough in itself to establish a claim of discrimination. She stated as per Graham Anthony above, the Complainant must adduce further facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred, namely in this case that he was discriminatorily dismissed, not afforded reasonable accommodation and victimised, as claimed. She stated it is respectfully submitted that in circumstances where the Complainant admitted at the Appeal Hearing that he had not put the Respondent on notice of certain matters renders it impossible for him to make a prima facie case as required.

The Respondent representative stated Section 6(1) (a) states that “discrimination shall be taken to occur where – (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation”. She stated the import of this section is to render any claim for discrimination, other than pregnancy discrimination, unsustainable unless an appropriate comparator is identified. She stated moreover, it is not an option for a complainant to merely select a comparator at random and it must be selected in context with other employees of the employer and reasons must be given for the selection.

The Respondent representative stated this means that for The Complainant to successfully rely on any hypothetical comparator, which he has not, he must provide an evidential basis that such a comparator would have been treated more favourably in the circumstances of his particular case and/or that any actual existing potential comparators are unsuitable see Barnmac Contracting Ltd v Zilys and Volkovas EDA 1022. She stated having regard to the foregoing it is submitted that The Complainant cannot state with any authority based in fact that the Respondent would have treated any other comparable member of staff any differently to him under the same circumstances. She stated this is because all Civil Servants are expected to be available to attend work and/or to provide reasons why they cannot accordingly. She stated, moreover, all employees of the Respondent are subject to the clocking system primarily for the purposes of health and safety and are also required to get permission to leave work accordingly. She stated indeed, the Complainant expressly accepted this at the Appeal Hearing in September 2020. She stated in this regard it is respectfully reiterated in the strongest terms that the Complainant at no time provided medical documentation advising that he could not attend work or interact with the clocking system due to his disability or at all and indeed even to date no such medical evidence has been provided.

The Respondent representative stated in respect of the foregoing, and for the sake of completeness only, the dicta of Clare Civil Engineering v Ostojic [EDA 101] is of particular note. She stated this case confirms that where a complainant fails to establish less favourable treatment due to the fact that all employees are “treated in the same manner” whether lawfully or not, i.e. even where employees are all treated equally poorly (which is not suggested to be the case with the Respondent), this will cause a claim for discrimination to fail. She stated therefore, in circumstances where all staff in the Respondent are subject to the factors the Complainant now claims he could not comply with it simply untenable to suggest that that The Complainant was treated less favourably in any context.

The Respondent representative stated therefore, it is respectfully reiterated that the reason the Complainant has failed to identify a comparator is because he is well aware that, hypothetical or not, no other employee would have been treated more favourably than he was by the Respondent in particular where the Respondent extended significant facility to him in respect of his ongoing absences for the reasons proffered by him at the time.

The Respondent representative referred to Section 16(3) which states: -

“(3)(a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as ‘appropriate measures’) being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability —

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

The Respondent representative stated it is respectfully reiterated that at no stage prior to the decision to dismiss him did the Complainant advise the Respondent that he needed any accommodation in respect of the clocking system in particular or at all nor did he provide any medical evidence to suggest that same was required. She stated in fact, the medical evidence expressly confirmed that he was fit to work. Indeed, it is clear from the evidence submitted that the Complainant admitted that he had not raised the issue of reasonable accommodation even advising that to not do so was “was a lapse on his part”. She stated accordingly, the Respondent relies on the dicta of the Labour Court in A Worker v An Employer EDA 1927 that states that even where an employee makes requests for accommodation (which is did not happen in this case) that a Respondent “could not have been expected to accept the Complainant’s assertions in the absence of medical evidence”. She stated this line of authority was followed in the recent August 2022 WRC decision of Goulart McNerney v Dept of the Environment, Climate and Communication” ADJ-00033757 and the Respondent relies upon same accordingly.

The Respondent representative stated having regard to the following, where the Complainant cannot discharge the burden of proof and make a prima facie case on the facts the Respondent cannot put the matter any further in respect of the allegation pertaining to reasonable accommodation.

The Respondent representative stated the Complainant has not particularised his complaint for victimisation other than to say that “The claimant made a complaint of discrimination not limited to that set out in para 7. She stated it is not yet known to the extent to which the treatment of him following this, was a result of the complaint”. She stated this statement renders the complaint of victimisation void. She stated the Complainant clearly cannot establish a prima facie case in circumstances where he effectively admits that he doesn’t know if his alleged complaint of discrimination two years prior had any impact on the decision to dismiss him which is clearly denied.

The Respondent representative stated, the narrative referred to at paragraph 7 of the Complaint Form states “On 16 November 2018 the claimant sent an email to Ms F M of HR. She stated his line manager (C K) had said the claimant was sleeping during work and asked him to arrange to see the CMO. She stated the claimant sent a letter to F M HR and said his Line Manager was discriminating against him and had over simplified matters. She stated he suggested he see his own GP instead, which F M agreed to”. She stated without prejudice to paragraph 52 above, having regard to this paragraph 7 of the Complaint Form, it is simply impossible for an allegation of victimisation as defined in s74 of the Acts to succeed. She stated further, as a matter of factual accuracy, there is no allegation of discrimination against the Line Manager contained within the said correspondence only a vague statement that HR should deal with the Complainant in “an accommodating manner, rather than a discriminatory manner”. She stated moreover, the Complainant’s contention that the Line Manager had misrepresented that he was sleeping at his desk is stark in contrast to the evidence given to the Investigator in 2016 by the Complainant in the company of his solicitor when he admitted to sleeping at his desk. She stated as such, it is clear that the statement that the Complainant advised in a letter to Ms. F M, HR that “his Line Manager was discriminating against him" is manifestly untrue and it is respectfully requested that the relevant inference be drawn in respect of the credibility of not just this allegation but the allegation for breach of the Acts generally.

The Respondent representative stated it should also be noted that yet again the Complainant makes no reference in this letter to his stated disability schizophrenia for the purposes of the within complaint but rather advises that he was dealing with a “medical issue of irregular noisy breathing, apnoea”.

The Respondent representative stated in circumstances where the Complainant has failed to particularise and/or refer to or disclose any evidence of a complaint of discrimination prior to the decision to dismiss him it is respectfully submitted that this complaint must also fail as a matter of fact and law.

The Respondent representative stated having regard to the totality of the foregoing it is respectfully submitted that The Complainant’s claims should fail in circumstances where: -

a.            He was not discriminated against on the ground of disability as alleged or at all; b.            He has not provided a proper or any comparator; c.            He was not victimised; and d.            He has ignored the Respondent’s bona fide attempts to assist and accommodate him on the basis of the medical information provided to it.

The Respondent representative stated for all of the aforementioned reasons the Respondent submits that the Complainant is not entitled to succeed and his complaints should be dismissed.

Dr C K gave evidence after taking affirmation on behalf of Office of Public Works.

Dr K stated he was the Complainants Line Manager.  He stated Mr M J was the complainants Line Manager before him.  He stated he was aware of a disciplinary previously in July 2018 which the Complainant was to be dismissed, however, they decided to step back from this once he engaged with the clock system.

Dr K stated he remembered the Complainant; Mr Fox was out sick in 2019 to February 2020 for approximately 1 year.  He stated he did his return-to-work meeting then and he made him feel welcome and it was a cordial meeting.

Dr K stated he encouraged him to engage with the clock system but it didn’t happen but he stated the Complainant knew he was supposed to do it.  Dr K stated he engaged very little with the clock system.  He stated when the Complainant asked him for assistance with the clock and he assisted him with it.  Dr K stated it was a simple system.  He stated he received no medical information from the Complainant other than the odd cert which went to HR.

Dr K stated he knew the conditions of the final warning he received was subject to him using the clock.

Dr K stated he remembered the meeting they had with the Complainant reference why he wasn’t using the clock – this was with HR.  He stated the final outcome was dismissal.  He stated he was also involved in the appeal process.  He stated the appeal counter statement stated that there was no medical reason stated by the employee’s GP or CMO to prevent him clocking nor was there any reasonable accommodation sighted at any stage.

Dr K stated he understood the employee had an aversion to the clock system due to paranoia of being watched.

Dr K stated the Complainant, Mr Fox however never provided any medical evidence to prevent him clocking nor was there any reasonable accommodations sighted.

Dr K stated he sensitively handled the situation of complainant sleeping at his desk and he said he suggested he should go to his Doctor reference it as he mentioned sleep apnoea.  Dr K stated he got him a company phone to access the internet to facilitate him to work from home as he had issued with broadband. Dr K stated there was lots of work available in their field.

In cross examination, the Complainant representative referred to request to notify complainant or his support person if he didn’t clock.  He stated the witness stated this request came after his dismissal.

The witness stated there was an issue with computer clock and system not working and this was remedied then and these times were not counted as an issue during his disciplinary process.

The Complainants representative asked the witness regarding emails between himself and Mr M J the Complainants previous line manager.  The witness confirmed he asked the complainant to work and he said the complainant told him he was well. They referenced an email the Complainant sent which he felt wasn’t very sensible at the time.  He stated there was also an incident reference the Complainant attending the Aras and he ended up in hospital after this.

Dr K stated the Complainant then returned with cert saying he was fit to work.  He stated the pattern occurred in this way and he said as his Line Manager he had to accept the medical evidence.

The Line Manager stated the Complainant was asked to provide medical evidence during disciplinary and he didn’t provide any reference to his medical condition at that stage.

At the conclusion of the hearing, I offered both representatives the opportunity to make closing statements.

 The Complainant representative gave their concluding comments. They stated that the employee was discriminated by the employer OPW as he was not given reasonable accommodation for clock issue and they said he should have been referred to the Chief Medical Officer (CMO) during the specific time of his disciplinary to see if this was due to his medical condition. He stated to provide reasonable accommodation was a joint responsibility by the employee and the employer. 

The concluding comments by the respondent representative was as follows; they stated they relied on the medical evidence at all times from CMO and employee’s GP and they have no medical evidence at any stage up to now or during his employment to state that reasonable accommodation was appropriate nor did the medical professional state he had a disability that required accommodation.

Section 85A of the Act now provides for the allocation of the probative burden as between the Complainant and the Respondent in cases coming with its ambit. This section provides, in effect, that the Complainant bears the initial burden of proving facts from which discrimination may be inferred.

If those facts are established, and if they are regarded by the Adjudicator as of sufficient significance to raise an inference of discrimination, the onus passes to the Respondent to show that the principle of equal treatment was not infringed in relation to the Complainant.

It is an essential requirement that the employer follows and considers any medical evidence presented by either the employees medical professionals or the company’s medical professionals.

In this case there is no medical evidence presented at any time of the employees’ employment or during the disciplinary process to highlight any medical reason that prevented the Complainant from clocking which results in his dismissal.   The first time that the Complainant raised the fact of his disability, schizophrenia, and/or that this said disability prevented him from interacting with the clock in system was after the disciplinary meeting on 9 July 2020 and after the decision to dismiss him had been taken; during the Appeal Hearing of that decision. Therefore, there was no reasonable accommodation required.

I also note that the Complainant had already been put on notice due to a previous disciplinary how serious the requirement to clock was and his manager aimed to assist him to clock.

I also note the Complainant had legal representative during both the disciplinary process’s and despite this they did not present any medical evidence for consideration during the disciplinary/appeal process and no medical evidence was presented to confirm the employee had a medical condition that prevented him from clocking and no reasonable accommodation was advised by a medical professional up to the date of the WRC hearing. 

All aspects of the disciplinary process were conducted in accordance SI 146 of 2000. The Complainant was given the opportunity to state his case. The Complainant was afforded the right to representation at all meetings under the disciplinary procedure, including at investigation stage and availed of this. The Complainant was also informed of the possible disciplinary sanctions arising from the disciplinary process. All the evidence in its entirety was considered, including the Complainant’s representation before any decision was made or action taken.  In light of all of the above, I therefore find that this was a fair dismissal.

The claim fails as I find no beach of the Employment Equality Act and no discrimination occurred and this was a fair dismissal.