Complainant

Respondent

Parties

Mark  Conlan

McR Group Mcr Group

Complainant

Respondent

Anonymised Parties

Representatives

Aodhán Peelo, B.L., instructed by Mary Cullen  & Co. Solicitors

 Warren Parkes Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00060514-001

13/12/2023

The Complainant commenced employment on a permanent basis with the Respondent as a Security Operations Manager from 16/07/2018.  His current salary is €50,000 and a target-based commission of €5,000.

The Complainant had a serious medical event in July 2021, and he returned to work in November 2022 in a desk-based capacity.  He returned full time in March and went on sick leave shortly after this.  The Complainant’s medical practitioners confirm that he is capable of desk-based work, but the Respondent’s case is that they cannot create such a role.  The Complainant submits that he is being discriminated against by the Respondent in not providing reasonable accommodation as required by Section 16 of the Act.  The Complainant also alleges that he was subjected to harassment on the ground of his disability contrary to Section 14A of the Employment Equality Acts, 1998 – 2015. 

The Respondent submits that it has complied with its obligations under the Act and denies that any harassment took place.

Summary of Evidence - Complainant: Mr Mark Conlan:

The Complainant gave evidence on affirmation.  He outlined that he commenced employment with the Respondent in July 2018 as a Security Operations Manager.  In 2003 he was given the role of Risk Assessor, and this was his main role.  He gave evidence that his daily duties required site visits (current and potential clients), client meetings, operations meetings, issuing of equipment and he would regularly deal with clients in relation to day-to-day operational issues.  The Complainant stated that he enjoyed his role and would deem himself successful.  In summary about 50% of his role was site visits and the other 50% was taken up with written work and paperwork.

In July 2021 the Complainant suffered heart failure and was admitted to hospital for five weeks.  He was discharged on 07/08/2021 and was certified as unfit for work for three months.  The Complainant gave evidence in relation to the limitations placed on him after his discharge.  He outlined that he was paid during these three months.

The Complainant gave evidence that his line manager was Mr Tony Malone.  He received a phone call from Mr Malone in early August 2021 and he feels that he was subjected to pressure to return to work.  The Complainant stated that Mr Malone wanted him to set up a home office and work from home, but he declined this request due to his doctor’s advice.  In June 2022 his medical consultant decided that he would require an ICD implantation in order to regulate his heartbeat.

The Complainant received a further telephone call from Mr Malone on 24/08/2021.  The Complainant returned to work on a remote basis in November 2021 as Mr Malone was concerned about the upcoming busy Christmas period.  The Complainant continued to work part time initially and then full time in March 2022.  During this time the Complainant did not attend site visits and  colleagues undertook this part of their duties and supplied him with the information necessary to compile the risk assessment reports.  The Complainant stated that he was given a pay rise and bonus payment in March 2022, and he was then allocated an additional 13 sites.  The Complainant gave evidence that he continued to receive calls while working from home and he tried to manage these.  He concluded that he could not resume full time work and continue as he was doing before his illness.  He was certified on sick leave from 14/03/2022.  The Complainant was contacted by his manager, and he was not happy with this contact.  The Complainant gave evidence that his line manager thought he had PTSD because of a previous role in the army.  The Complainant felt that if he had PTSD, it was because of his heart attack and associated issues.

The Complainant outlined that in March 2022 he undertook a cardiac rehabilitation course and the Respondent organised 6 therapy sessions for him.  He also completed a physical and mental well-being course in the hospital. 

The Complainant gave evidence that the only representative for the Respondent who took an interest in his welfare was Mr Geoffrey Doyle and he appreciated his contact.   The Complainant confirmed that he informed Mr Doyle on 22/06/22 about the ICD implantation and his desire to discuss options about returning to work when this procedure was completed but he did not have a date for this.  The Complainant updated Mr Doyle again at the end of September and informed him of his upcoming meeting with his cardiologist.

The Complainant sent a letter from his GP to Mr Doyle on 08/11/2022 which stated that he was fit for a desk-based role.  There was no response to this, and he later had a meeting with Mr Doyle.  During this time, he was not sent for an Occupational Health assessment by the Respondent, and he did not know about such an assessment at that time.

After his meeting with Mr Doyle the Complainant was asked to outline a potential list of  duties that he felt he could undertake, and he submitted this to Mr Doyle at short notice.  The Complainant stated that he believed that the duties he outlined were consistent with most of the duties he undertook when he was facilitated with remote working   The Complainant stated that he was informed by Mr Doyle that he spoke with other managers about this role, but it was not deemed to be feasible.  

The Complainant gave evidence that he was aware of another employee who had a similar health issue, and she was accommodated.  The Complainant confirmed that he submitted normal sick certificates to the Respondent.  The Complainant also confirmed that he was sent for an Occupational Health Assessment by the Respondent, and they provided a report.  The Complainant stated that a list of his duties was provided to the Occupational Health Physician by the Respondent.  The Complainant stated that he had previously asked for such an assessment on two occasions, but he was informed by his line manager that this was a waste of time.  The Occupational Health Assessment was only organised after he contacted the CEO directly.

The Complainant confirmed that he received an e mail from Mr Doyle on 03/10/2023 which confirmed that there was no desk-based role available for him. This e mail also stated that the previous desk-based role was agreed to facilitate his recovery.  The Complainant stated that he took exception to the use of the word “recovery” on two occasions in that e mail.  He stated that this clearly indicated that the Respondent did not understand the seriousness of his condition.  The Complainant stated that 70% of his heart was affected by his condition and that 70% was never going to recover.  It was a condition he would have to live with. The Complainant stated that he was most disappointed with this outcome and particularly as he had performed well when he had the initial desk-based role.

The Complainant gave evidence that he remains on sick leave and was last paid by the Respondent in March/April 2022.  He also gave evidence in relation to the effects of being out of work  has on him financially.  He confirmed his desire to get back to work to improve his physical and mental well-being and to earn a salary again.

Summary of cross-examination – Mr Mark Conlan:

The Complainant was cross examined by Mr Parkes, Solicitor, on behalf of the Respondent.  The Complainant was asked to explain how he could state in evidence that he got the heart attack through work.  He stated that it was due to the stress he felt, the lack of sleep, double jobbing, anti-social hours, dealing with issues and frustration with problems.  He was asked if his consultant or GP had confirmed that he got the heart attach as a result of work issues.  He stated that he did not receive such confirmation.  It was put to the Complainant that he was also a heavy smoker and he confirmed that he no longer smoked.  It was put to the Complainant that there was something of a contradiction in saying that his work gave him the heart attack and at the same time he wanted to return to work. The Complainant stated that he wanted to go back to the job he had previously.  He was asked if this was the Security Operations Manager role, or the Risk assessment Role and he stated that he wanted to go back to the role he had from November 2021 when he was working from home on a part time basis.  It was put  to the Complainant that when he was in that role the Respondent had to ask other employees to do the risk assessment part of the role which involved site visits.  He agreed that was the case.  It was then put to the Complainant that would then require two people to do that role.  He agreed that this would be additional work for other employees.

The Complainant was asked if the report from the Occupational Health Physician encapsulated his duties as a Security Operation Manage and he said that it did not.  The Complainant was not able to outline what elements of that role were missing.  It was put to the Complainant that the only part of his role that he can’t do is the risk assessment element and he confirmed that was the case.

The Complainant confirmed that while on sick leave he did receive telephone calls and a video message from Mr Tony Malone and that this did lift his spirits.  The Complainant was asked what the duration of his medical certificate was when he was discharged from hospital in August 2021.  He confirmed that it was for the “foreseeable future”, and he informed Mr Doyle when he was discharged.  It was put to the Complainant that it would be reasonable for Mr Malone to ring him when there was no medical certificate provided.  The Complainant stated that he would not agree as he had told Mr Doyle what the position was.   The Complainant was asked if he received a total of four telephone calls form Mr Malone and if this was the basis of his complaint of harassment.  The Complainant confirmed that was correct.

The Complainant confirmed that he was certified fit to work by a medical professional in November 2021 and that when he resumed work he was facilitated with working from home.  The Complainant stated that he was anxious to get back to work and he still remains anxious to return to work.

It was put to the Complainant that it was not clear what he actually wanted.  The Complainant stated that he wanted to get back to work with no site visits and more involved in training and recruitment.  The Complainant confirmed that he cannot drive at the moment.

It was put to the Complainant that the Respondent has a dedicated recruiter and he stated that he has been involved in interviews to assess the suitability of candidates.  The Complainant believes that there is a vacancy in recruitment and administration.  The Complainant was asked if it was his aspiration that the Respondent had to establish a role to suit him, and he stated that “it would be great if it was”.  The Complainant was asked when he was paid by the Respondent during his illness, and he confirmed that he was paid from August to November 2021 and from November 2021 to February 2022.  It was put to the Complainant that the Respondent looked after him and he confirmed that they did during the first six months of his illness, and he described this as “brilliant”.

The Complainant confirmed that he was certified on sick leave in March 2022 when he became overwhelmed with the job.  It was put to the Complainant that his medical certificates state that he is not fit to undertake the Security Operations Manager role and he confirmed that the doctor had stated that, but he wants to go back but the Respondent has told him that there is nothing available except his old job.  The Complainant was asked if he agreed that it was the medical certificates that would inform the Respondent if he was fit or unfit to work and he agreed.  The Complainant also agreed that the medical certificates submitted in September 2022 and November 2022 state that he can only undertake a desk-based role.  It was put to the Complainant that the medical certificate from November 2022 does not state that he should only have part time work and he agreed but he has since completed the Cardiac Rehabilitation Programme.

It was put to the Complainant that he stated that he was entitled to an Occupational Health Assessment, and he confirmed that was his position.  The Complainant was asked if he would confirm his position that the Respondent had made a decision in relation to his return to work in advance of the Occupational Health Assessment and he confirmed that was his position.  The Complainant was then asked what the difference was between his GP certification and the Occupational Health Assessment, and he confirmed that there was no difference. 

In relation to the comparator named by the Complainant it was put to him that this person worked in I.T. it was easier to facilitate her as there would be no changes required for the person’s actual job. 

The Complainant confirmed that he had 7-8 meetings with Mr Doyle and confirmed that he had a good relationship with Mr Doyle.  It was because of a meeting with Mr Doyle that he sent the e mail of 15/12/2022 in relation to the role he was suggesting.  The contents of this e mail were put to the Complainant in terms of which parts he was currently doing, and which were parts of other people’s roles.  There were 5-6 areas which would be currently linked to other people and the Complainant confirmed that these did criss-cross with other roles.  It was then put to the Complainant that if the Respondent created the role he outlined then others would have to yield part of their role and he agreed that was the case.

It was put to the Complainant that there was no stand-alone role and he agreed.  The Complainant also agreed that if there was a job available with the caveats he wanted he would expect the Respondent to make some allowances.  The Complainant was then asked what his position would be if there was no position available and he said that he would expect the Respondent to take him back and he continued to expect the Respondent to look after him.  He confirmed that this included his expectation that they would find a job for him.

Summary of Legal and Closing submissions:

In a legal and closing submission on behalf of the Complainant it was submitted that the Respondent has discriminated against the Complainant on the grounds of disability and has failed to make reasonable accommodation for him as required by statute.  The legislation, in Section 2 (1) of the Act defines “disability” as meaning:

(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)    […]

(c)     The malfunction, malformation or disfigurement of a part of a person’s body

[…]”

Section 16 of the Act defines an employer’s obligations and provides:

16.— (1) Nothing in this Act shall be construed as requiring any person to recruit or promote an individual to a position, to retain an individual in a position, or to provide training or experience to an individual in relation to a position, if the individual—

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.

(2) …(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.

(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 reasonably provide for himself or herself:”

Mr Peelo, B.L., on behalf of the Complainant submitted that there was very little in dispute in this case.  The fact that the Complainant had a disability was accepted.  The case of Cunningham v Irish Prison Service [2020] IEHC 282 is relevant in this case.  In that case the Complainant was certified as unfit to carry out certain duties in the medium to long term and the High Court stated that it was not open to the Respondent to “self-certify that the appellant is incapable of performing the range of functions that he may be called upon to do”.

In this case the Complainant was facilitated for a period of five months, and it is not a credible proposition that it could not be done on a permanent basis.  The core question is could some of the Complainant’s tasks be distributed among colleagues.  The role envisaged was mainly a redistribution of tasks and the role could be a hybrid role.  There are 15 colleagues and the only issue raised by the Respondent was that of site visits.

It is clear that a decision was made not to facilitate the Complainant prior to his review by the Occupational Health Physician.  He got a phone call from the Respondent a mere five days after being discharged from hospital.  The Complainant’s legal representative noted two instructive cases in this regard:  An executive Assistant v A University (ADJ-00022851) and Damien O’Suillivan v FG Wilson Engineering (Dublin) Limited (ADJ-00030123).

It was submitted on behalf of the Respondent that there was no issue in relation to the fact that the Complainant had a disability.

Summary of Evidence - Mr Geoffrey Doyle - Group Operational Director:

Mr Geoffrey Doyle gave evidence on affirmation.  He outlined that he is the Operational Director for the Group.  He confirmed that he is Mr Malone’s manager.  Mr Doyle gave evidence that he was not involved in any of the telephone calls from Mr Malone to the Complainant.  Mr Doyle stated that he was aware of the part time role the Complainant had and that the Complainant did not accurately describe this.

Mr Doyle was asked about his views on the Complainant’s request for an administration role within the security section.  Mr Doyle stated that they currently employ 15 Security Operations Managers and an Operations Manager is assigned to each site.  The role involved a lot of pre contract work, and the key element is the relationship with the customer/client.  They directly employ almost 2,000 security officers for their sites.  There are four people working in the security division who look after rostering and one administration role.  There is another person whose role is recruitment consultant.    Mr Doyle stated that there is no room for an additional person to work alongside the existing four people.

Mr Doyle was asked why the Complainant was given the part time role in November 2021 and he stated that the Complainant was a valued member of the team, and he would regard him as the best Operations Manager.  The Complainant’s return to work at that time was organised by Mr Malone and he was accommodated with part time working and working from home.  Mr Doyle stated that the role of Security Operations Manager is not suited to working from home.

Mr Doyle explained that when the Complainant was working from home, he did not undertake site visits.  This meant that another person would be sent to a site and submit their reports and observations to the Complainant.  This was not an ideal way to undertake this work as the Operations Manager needs to visit the sites otherwise there can be a breakdown in many areas when this is not done.  Mr Doyle confirmed that the site visits resulted in additional work for other employees.

Mr Doyle gave evidence that he had a number of meetings with the Complainant, and they were also in e mail contact.  Mr Doyle stated that the Complainant was always clear that he wanted to return to work, and he asked the Complainant to send him a list of what he thought he could do.  Mr Doyle stated that the list submitted to him by the Complainant was a brand-new role.

Mr Doyle was asked if the Respondent had made a decision in relation to the Complainant’s return to work prior to his review by the Occupational Health Physician.  Mr Doyle explained that they only send employees for an occupational health review if there was a concern about their illness.  Mr Doyle clarified that here was never any concern or issue in relation to the Complainant illness or his medical certificates.  Mr Doyle was asked what measures the Respondent considered in relation to the Complainant’s return to work.  Mr Doyle explained that there were no measures required.  What was required was a redistribution of some key tasks and the Respondent did not think that it was tenable to create a new role to achieve this.

Mr Doyle confirmed that the consultation with the Complainant was always through him, and they met 4-5 times and exchanged e mails.  Mr Doyle was asked about his use of the word “recover” which was in the e mail he sent to the Complainant on 03/10/2023.  Mr Doyle said that the didn’t really think too much about the word and would regret if the Complainant took offence to it.

Mr Doyle confirmed that there was no specific desk-based role available for the Complainant and if there was, he would be happy to take him back.  Mr Doyle also confirmed that he was aware of the grant scheme/public funding, and he was also aware of the legislation and confirmed that funding could be sought if training was required.

Mr Doyle confirmed to the Adjudication Officer that while they took on additional Security Operations Manager the Complainant’s role was still available.

Summary of Cross examination – Mr Geoffrey Doyle:

Mr Doyle was cross examined by Mr Peelo, B.L.,  on behalf of the Complainant.  He confirmed that the Complainant worked in an Operations Management role and that there were four other such roles.  Mr Doyle was asked about the duties the Complainant summitted to him on 15/12/2022 and he stated that these duties do not look like the Security Operations Manager role, and they are not describing the four administration roles.  Mr Doyle was asked to clarify the recruitment aspect of the Complainant’s role.  He stated that operational managers may be involved in approximately 20% of the recruitment and the dedicated recruiter does the main body of work.

Mr Doyle was asked if the Security Operational Managers worked individually or as a team.  He explained that the Complainant was a superb worker, and he was not aware that the Complainant was working remotely at that time.  He was also not aware of any specific breakdown or complaints about the Complainant’s work during that period.  Mr Doyle stated that he did not believe that it was tenable to have a split role.  Mr Doyle confirmed that if it was known then that he was unlikely to recover they would not have agreed to him working remotely.  Mr Doyle also confirmed that one other person was working in a desk-based role.

Mr Doyle confirmed that he received the Complainant’s e mail of 15/12/2022 and that he discussed this with the other operational managers in order to assess it.  It was put to Mr Doyle that the Complainant was facilitated with a desk-based role for three months and it was then decided that it was not feasible.  Mr Doyle stated that a desk-based role was not tenable.  Mr Doyle confirmed that the Respondent had two meetings to assess the Complainant’s proposed role.  Mr Doyle confirmed that it was his position that if a vacancy arose, they would take the Complainant back in one of the administration roles or operational manager roles.

Summary of Evidence - Mr Tony Malone – Operations Security Director:

Mr Tony Malone, Operations Security Director gave evidence on affirmation on behalf of the Respondent at the remote hearing.    Mr Malone gave evidence in relation to the grants and funding that are available to assist an employer in implementing reasonable accommodation for an employee.  He outlined that he spoke to the Department of Social Protection and there were three schemes available.  There is the  Reasonable Accommodation Fund, an Employee Retention Grant and a Wage Subsidy Scheme.  Mr Malone gave evidence that he discussed these schemes with Mr Jeffrey Doyle, and they concluded that it was not reasonable to create a job when there were no vacancies and that the role the Complainant had was a client facing role which involved carrying out risk assessments which needed to be updated in line with the progress of the work on site.  The Complainant had asked for an office-based role and there was no such role available.  The nature of the Complainant’s work was that it involved visits to sites, investigating issues, dealing with difficulties, and reporting and liaising with clients.  Mr Malone gave evidence that they tried to accommodate the Complainant in the early stages of his illness by getting other managers to take on some of the Complainant’s role and then assign some of the report writing to the Complainant.  This created an additional burden on those managers and while they attend the office on occasions their role is predominantly based at site locations.

Mr Malone stated that the Complainant had proposed an office-based role for himself, and this proposal would have involved taking significant tasks from other managers.  Mr Malone stated that creating such a role would not work for the Respondent.   Mr Malone confirmed that there were no such vacancies available, and this remains the position as all the operational managers are out on the road.  Mr Malone stated that other elements of the Complainant’s proposal such as recruitment, health and safety training, conflict resolution and manual handling instruction are all done by employees who are trained and carry out these roles as part of their normal work.

Mr Malone confirmed that the Respondent’s position was that in order to meet the Complainant’s proposal they would have to create or regenerate a role for him.  This was not feasible.

Mr Malone gave evidence that the Complainant was a respected member of their staff and was well thought of. They tried to assist him in every way possible, including extending his sick leave entitlement.  This was done because they wanted him to return to his role.

In response to some questions from the Adjudication Officer Mr Malone clarified his role and reporting relationships with the Respondent.  He reports to Mr Geoffrey Doyle as well as the senior management team.

Mr Malone confirmed that the initial arrangement whereby managers submitted various data to the Complainant, and he then prepared a report was not feasible in the long term as the managers who agreed to this initially then complained about the doubling up of work and the additional burden this placed on them.  The Respondent’s clients also wanted to meet with the person who prepared the reports, and this was usually done at the client’s site.

Under redirection Mr Malone clarified that the Complainant was certified fit to return to work by his doctor but when he resumed work, he discovered that he was unable to do so.

Summary of Cross examination – Mr Tony Malone:

Mr Malone was cross examined by Mr Peelo, B.L.,  on behalf of the Complainant.  Mr Malone was asked to clarify the schemes and why these did not assist in the Complainant’s case.  Mr Malone stated that he looked at the three schemes: the Reasonable Accommodation Fund, the Employee Retention Grant and the Wage Subsidy Scheme.  Mr Malone stated that in the Complainant’s case he was looking for another position to be created and they did not have a role for him.  Mr Malone stated that they wanted him back and kept him on full wages to try and get him back.  It was in that context that his colleagues agreed to assist for a period of time.  Mr Malone was asked what they criterion were, and he stated that they were designed to retain an employee if there is a role available.  There was no role available that would suit the Complainant.  The Complainant’s proposal would have resulted in taking roles away from other employees.

It was put to Mr Malone that the Complainant gave evidence that he was contacted by him a few days after he was discharged from hospital and was certified on sick leave for three months and that Mr Malone asked him when he would be returning to work.  Mr Malone stated that he was on friendly terms with the Complainant, and he contacted him on many occasions to enquire about his well-being, but he could not recall asking him specifically about his likely return to work or he could not recall suggesting  a home office arrangement.  Mr Malone stated that as he was on friendly terms, they would have discussed many things and would have been talking as friends.

It was put to Mr Malone that the Complainant gave evidence that he felt pressurised by him and that it was for that reason the Complainant asked him to cease contacting him.  Mr Malone stated that he did not in any way put any pressure on the Complainant.  Mr Malone repeated his evidence that they Complainant was held in high regard, and they would have liked him to return to his role.    It was put to Mr Malone that while he wanted the Complainant to return to his role the fact was that his medical condition prevented him from doing so.  Mr Malone stated that he was not aware that the Complainant would not make a complete recovery.

Summary of Legal and Closing submissions:

In a legal and closing submission on behalf of the Respondent it was noted that Section 16 of the Employment Equality Acts requires an employer to take appropriate measures to facilitate persons with a disability to access and participate in employment unless those measures would impose a disproportionate burned on the employer.  The case of Nano Nagle v Marie Daly [2019] IESC 63 is the seminal case in this area of law.  It is the Respondent’s position that it is not disputed that the Complainant had a disability and all the medical certificates and associated correspondence consistently confirm this.  The Complainant is unfit to carry out most of his Security Operational Manger duties and is only fit to engage in desk-based administration work. The Complainant was facilitated with a work-from-home arrangement in the early stages of his recovery, but this is not feasible.  The role sought by the Complainant is beyond what the Court stated was reasonable accommodation and it is clearly a different job.  It was also submitted on behalf of the Respondent that consultation and engagement is not a mandatory requirement, the Respondent had several meetings and organised a referral to an occupational health specialist.  The evidence of the Respondent’s witnesses, Mr Doyle and Mr Malone was that they gave serious consideration to the possible measures.  The Respondent also paid the Complainant when they had no obligation to do so.  The Complainant resumed his duties, and it was always his desire to return. However, his doctor certified him fit to return and after resuming his duties he discovered that he was not fit.  The Complainant was also assessed by the Respondent’s doctor at that stage.

It was also submitted that the Respondent comprehensively examined the issue of a redistribution of the Complainant’s core tasks as part of the provision of reasonable accommodation.  This was done from November 2021 to March 2022 and the Respondent found that this was not feasible, and the Complainant was informed of the reasons for this during the various meetings with him.  The Respondent did reassign his duties on a temporary basis, and these were undertaken by his colleagues in addition to their normal workload.  This created difficulties for the Respondent.

The Respondent also undertook an analysis of the Reasonable Accommodation Fund, the Employee Retention Grant and the Wage Subsidy Scheme.  None of these schemes would have brought about the result that the Complainant wanted.  It was determined that where no live or current vacancy was available it would have been a disproportionate burned on the Respondent to create a new position specifically for the Complainant and it was not a workable solution to take significant duties from other employees or to ask them to forfeit parts of their roles.  The Complainant is still an employee and if a vacancy arises which would suit his skill set or if training would render him a suitable candidate, then he would be considered, and the option of State funding options may be utilised.

The Respondent has complied with its obligations under the Employment Equality Acts and its obligations as set out in the Supreme Court case of Nano Nagle v Marie Daly [2019] IESC 63. 

The Respondent denies that any harassment under the Employment Equality Act took place. The evidence on both hearing days was that there was constructive engagement with the Complainant and if there was no engagement this would have become an issue. 

The Respondent wanted the Complainant back and the issue is that the role the Complainant designed does not exist and when assessed it could not be created.

The Complainant submitted a complaint to the Workplace Relations Commission on 06/04/2023 that he was discriminated against by the Respondent, and this resulted in him not being provided with reasonable accommodation.  He has also alleged that he was subjected to harassment by the Respondent.

The Respondent submits that the complaint is not well founded as no discrimination took place and that it had complied with its obligations under the Employment Equality Acts and its obligations as set out in the Supreme Court case of Nano Nagle v Marie Daly [2019] IESC 63.

In evaluating the evidence before me, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85A of the Acts. The Labour Court has consistently held 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.

Section 6 of the Employment Equality Act defines age discrimination as:

“6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

The onus of proof is on the Complainant to first establish a prima facie case of discrimination of, in this case, disability, before the burden shifts to the Respondent to set out its defence. The principles were set out by the Labour Court in Southern Health Board v Mitchell(2001) DEE 011:

“(2) A claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

(3) Only if these primary facts are established to the satisfaction of the Court, and they are regarded as being of sufficient significance to raise a presumption of discrimination, does the onus shift to the Respondent to prove that there was no infringement of the principle of equal treatment. Wallace v. South-Eastern Education and Library Board[1980] NI 38; [1980] IRLR 193 followed”.

Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 at para 2-207 commenting on Mitchell:

“This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Tribunal or Court at the level of balance of probabilities and if proven, must be of sufficient significance as to raise an inference of discrimination. In the case before it, the Labour Court found, on the facts of the case, that the Complainant could not demonstrate superior qualifications and experience than the successful appointee and that she therefore failed to discharge the burden of proof that rested on her”.

Section 85A of the Acts states that where 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. 

I find that the Complainant has made out a prima facie case that the Respondent did discriminate against him on grounds of disability, in relation to the provision of reasonable accommodation within the meaning of section 16 of the Acts. 

The second question I am required to address is whether the Respondent was aware of the Complainant’s disability at the material time? I am satisfied that the Complainant has established that he had a disability at the material time of this complaint, and that the Respondent was aware of this.  

 It is not disputed that the Complainant’s illness constituted a disability, and the Respondent has confirmed that they were aware of this from the initial stages of the Complainant’s illness.

The third question I am required to address is whether the Respondent failed to provide the Complainant with reasonable accommodation in the form of appropriate measures and in circumstances amounting to discrimination contrary to the provisions of the Acts?

Section 16 of the Acts can provide a complete defence to a claim of discrimination on the disability ground if it can be shown that the employer formed the bona fide belief that the Complainant was not fully capable of performing the duties for which he or she were employed. 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” as established in Humphries v Westwood Fitness Club [2004] 15 E.L.R. 296, 300, which decision was upheld on appeal by Judge Dunne in the Circuit Court. The Court stated the following:  “It is generally accepted that the nature and extent of the enquiries which an employer should make will depend on the circumstances of each case and the questions which the employer is considering”.

The Supreme Court in Nano Nagle School v Daly [2019] IESC 63 found that s.16(3) of the Acts places a “mandatory primary duty” on an employer to take appropriate measures where required in a particular case to enable the employee, to continue in employment, unless this would impose a disproportionate burden on the employer.  However, it was stated that an employer is not required to create an entirely new job to facilitate an employee remaining in employment.

Claim in Relation to Failure to Provide Reasonable Accommodation:

I do not accept that the Respondent failed to reasonably accommodate the Complainant within the meaning of that term in the Acts. The purpose of reasonable accommodation is to render a person fully capable to undertake the full range of duties associated with their role. The Complainant accepted in cross-examination that all he wanted as a comparable job given that it was the Respondent who had to organise this. I find that this was a reasonable request by the Complainant, but it is not a request for ‘reasonable accommodation’ within the meaning of the Acts. I am satisfied that the occupational health report did not specifically request reasonable accommodation in relation to the Complainant’s disability. I note that in the Occupational Health Assessment Report dated 02/10/2023 the doctor opines: “I have broken down his duties below, listing what he is medically fit and unfit for”.

I find that the Respondent has succeeded in  discharging the burden of proof required to establish that they did not discriminate against the Complainant on the disability ground.

Claim of Harassment:

The next element of the Complainant’s complaint that I must address relates to the claim that he was subjected to harassment by the Respondent within the meaning of Section 14A of the Acts.

“Harassment” is defined by section 14A(7) of the Acts which states:

“references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds …. being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

Section 14A(7)(b) further states that "such conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material".  

For a complaint of harassment under the Employment Equality Acts to be made out, the Complainant must demonstrate a nexus between the alleged treatment and the discriminatory ground. 

The Complainant submits that following acts constitute harassment within the meaning of Section 14A of the Acts, namely: being contacted on four occasions by his line manager after his discharge from hospital following a serious medical event.

The Respondent disputes the claim of harassment contrary to Section 14A of the Employment Equality Acts and submits that the Complainant has failed to identify which conduct is alleged to have had the purpose of violating his dignity. However, it is submitted that no actions on the part of the Respondent had such purpose or effect.  The contact from his manger was motivated initially in relation to the welfare of the Complainant and subsequently to ascertain if there was any clarity on the likely return date of the Complainant.

It is clear from the evidence and the conduct and interactions of the Complainant and the witnesses at the hearings that there is a prevailing attitude of mutual respect.  The Respondent routinely established that it was their aspiration that the complainant would be able to resume his role and continue his valued contribution to their organisation.

Having regard to the evidence adduced, I am satisfied that the Complainant has not presented any evidence from which I could reasonably conclude that he was subjected to harassment on the ground of his disability contrary to Section 14A of the Acts. 

Having considered the submissions of both parties and the evidence put forward at the hearings of this complaint, I find that the Complainant has raised a prima facie (upon initial examination) case of discrimination on the grounds of disability contrary to the Employment Equality Acts, 1998 – 2015.

I find that the Respondent has succeeded in discharging the burden of proof required to establish that they did not discriminate against the Complainant on the disability ground and therefore I find that the Respondent did not discriminate against the Complainant on the grounds of disability.

I further find that the Respondent did not fail in its obligations to provide reasonable accommodation to the Complainant as a person with a disability in accordance with the provisions of subsection 16(3) of the Employment Equality Acts, 1998 – 2015.

I find that the  Complainant has not presented any evidence from which I could reasonably conclude that he was subjected to harassment on the ground of his disability contrary to Section 14A of the Employment Equality Acts, 1998 – 2015. 

In summary, I find that this complaint is not well founded.

Discrimination.  disability. Reasonable accommodation.