Complainant

Respondent

Parties

Melissa`Sanders

Neutrapharma

Representatives

Leo Murphy David Cowhey Solicitors LLP

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-00055289-001

27/02/2023

The Complainant was hired as a Sales and Marketing Manager by the Respondent on 1 June 2022 and was paid €45,000 per year. She stated that she was discriminatorily dismissed on 5 December 2022 because of her persistent misspelling of words which she attributes to Attention deficit hyperactivity disorder (ADHD).

The Complainant stated in her evidence that she believed that she was dismissed by the Respondent because of how critical she was of the management team and their failure to support her in her role around all aspects of her performance, including her poor spelling which she attributes to her ADHD. She further stated that she highlighted the difficulties that she had with the Managing Director in an email to him on 8 August 2022 and that in an email response from him on 9 August 2022, he agreed to step back from being her line manager.

She accepted that she had difficulties with her childcare arrangements initially and that her children appeared on work calls until September 2022, but asserted they were cared for by family members after that. She also stated that while she wasn’t available for meetings any day between 3-5pm she would work in the evenings from 8-10pm to make up the hours.

She stated that she was informed in an email from the Respondent on 17 November 2022 that her job was safe and was shocked to learn only a few days later on 22 November that her probationary period was being extended. Despite having asked for written confirmation of the reasons behind the extension of her probationary period, she did not receive the explanations until 1 December 2022. She stated that she was so shocked to learn from this email that she was being penalised because of her disability that she had to take the following day off work due to her stress levels being so high. When she was subsequently informed on 5 December 2022 that she was being dismissed, she stated that the Respondent sought to describe it as a mutual parting of the ways which was untrue.

The Complainant was initially hired as a Sales and Marketing Manager by the Respondent. As she was not comfortable on the sales side of the business, her role was changed soon after she began to Marketing Manager only. Although she created company presentations, brochures and social media posts in her role, the Managing Director stated that it became apparent very quickly that the Complainant did not have the experience she needed to fulfil the role of Marketing Manager. The Managing Director also stated that the Complainant had inadequate childcare and had three children on her lap during several team meetings, which was witnessed by a number of the Respondent’s employees. As a result, the Respondent moved the weekly meeting to an earlier time to accommodate her. Despite having moved the start time, the Complainant still had difficulties with her baby and on several occasions had to cut the meeting short and turned off her video during conference calls. This led to complaints by team members about her behaviour during meetings and discussions. Further complaints were also made about her performance which the Managing Director addressed with her personally.

On 30 August 2022, the Complainant advised the Respondent that she had been diagnosed with Autism as well as ADHD. She stated that Autism presents as Aspergers Syndrome and the Complainant also explained that poor spelling was a function of ADHD. As a result, the Respondent decided to proofread the Complainant’s work. The Complainant did not send everything to be proofread however and this resulted in her misspelling the Respondent’s name, their website and email addresses. As well as proofreading the Complainant’s work, the Respondent decided to get her additional tools to help with her postings on social media. Specifically, a decision was made to purchase Hootsuite for her but she did not use this as intended.

As a result of the ongoing performance difficulties, the Respondent decided to extend the Complainant’s probationary period and informed her of this extension on 22 November 2022. This led to the Complainant to cry in front of the Managing Director. Given the ongoing difficulties with her children attending meetings, the Respondent informed the Complainant that they could make a hot desk available to her within a few minutes of her home. This offer was declined by the Complainant however because she didn’t have any childcare arranged for her baby despite having reassured the Respondent on numerous occasions that she was addressing her childcare needs.

The Respondent acknowledged not providing an explanation in writing for the extension of the Complainant’s probation until 1 December 2022. He stated that he subsequently changed his mind about extending the probation having reviewed email correspondence from the Complainant over the weekend of 3-4 December and decided instead to terminate her employment on 5 December.

Disability is defined in Section 2 of the Acts:

‘‘disability’’ means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

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

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”

I am satisfied that the Complainant’s disability, namely ADHD, comes within the definition of a disability outlined above.

Section 6(1) of the Employment Equality Acts provide:

“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 on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’)”

Section 6(2) provides:

“As between any 2 persons, the discriminatory grounds (and the descriptions of

those grounds for the purposes of this Act) are—

(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”),

Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary."

In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated in relation to Section 85 A as follows:

"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.”

The Labour Court in the case of The Southern Health Board v. Dr Teresa Mitchell DEE 011, 15th February 2001 considered the extent of the evidential burden which a Complainant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The LC stated that the Complainant must:

“.... “establish facts” from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.”

It requires the Complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that she was discriminated against on the disability ground. It is only when she has discharged this burden that the burden shifts to the Respondent to rebut the prima facie case raised.

The Complainant said in evidence that she told the Respondent that she had ADHD on 30 August 2022 and that poor spelling is a function of the disability.

The Managing Director in evidence said that they provided accommodations for the Complainant’s poor spelling and supported her throughout her employment. Specifically, he asserted that he and the other staff proofread her work and purchased an application, Hootsuite, to assist with her spelling. Additionally, he provided detailed evidence regarding the challenges posed by the Complainant's children attending remote meetings, which led to difficulties for other staff and resulted in complaints to the senior management team. Although he indicated that one of the main factors in his decision to terminate her employment was her reluctance to arrange proper childcare despite previous discussions about same, I noted that there was no reference to her refusal to alter her childcare arrangements in the letter of 1 December 2022 wherein she was informed that her probation was being extended or in the letter of 5 December 2022 confirming that her employment had been terminated.

On the other hand, I noted that the Complainant’s spelling difficulties were clearly highlighted as the operative reason for the extension of her probationary period in the letter of 1 December 2022. While I recognise that there were no reasons behind the decision to terminate her employment set out in the letter of 5 December 2022, I note that, due to illness, the Complainant did not perform any work for the Respondent between receipt of the letter of 1 December and 5 December. I find that it is therefore reasonable to rely on the reasons given in the letter of 1 December 2021, namely her persistent misspelling, to understand why her employment was terminated and am satisfied that the Complainant has established a prima facie case of discriminatory treatment on the disability ground.

Where a prima facie case is made out the onus shifts to the Respondent to rebut the inference of discrimination raised. Prior to examining the Respondent’s rebuttal, it should firstly be highlighted that an employer is not obliged to retain an employee who is not fully competent and capable of doing the job s(he) is required to do. Section 16 (1) of the Acts states:

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

(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.”

Section 16(1) must be read in conjunction with Section 16(3) where a person with a disability is regarded as fully competent and fully capable of undertaking duties if ‘reasonable accommodation’ is the only difference between s(he) being able to do the job and not being able to do the job:

(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.”

In relation to the practical requirements and obligations placed on employers, the Labour Court has found in Humphreys v Westwood Fitness Club [2004] E.L.R. 296 that:

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

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

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

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

The Labour Court has found in An Employer and A Worker EDA 0413 that the reasonable accommodation test is an objective one:

“The provision of special treatment or facilities is not an end in itself. It is a means to an end and that end is achieved when the person with a disability is placed in a position where they can have access to, or as the case may be, participate in, or advance in employment or to undergo training. This can involve affording the person with a disability more favourable treatment than would be accorded to an employee without a disability. Thus, it may be necessary to consider such matters as adjusting the person’s attendance hours or to allow them to work partially from home. The duty to provide special treatment may also involve relieving a disabled employee of the requirement to undertake certain tasks which others doing similar work are expected to perform. The scope of the duty is determined by what is reasonable, which includes consideration of the costs involved. This is an objective test which must have regard to all the circumstances of the particular case.”  

The Respondent in this case knew that the Complainant had ADHD and provided additional supports to her. Specifically, they proofread her work for spelling errors and purchased an additional tool Hootsuite to assist with her spelling. Crucially, I also noted that the Complainant, when questioned be me at the hearing, stated that the Respondent “did as much as they could” to help with her spelling. Although the Complainant subsequently sought to resile from this assertion in an email that she sent to the WRC on August 11 at 1.14pm, I must prefer the sworn evidence that she gave in response to my question at the hearing that morning.

Having therefore considered all of the evidence presented in relation to the supports given by the Respondent to assist the Complainant with her spelling, which I am satisfied was the operative reason behind her dismissal as evidenced from the extension of probation letter of 1 December 2022 only four days before the termination of her employment, I find that the Respondent has discharged the burden of rebutting the prima facie case of discriminatory treatment on the disability ground made by the Complainant. Accordingly, I find that the Respondent did not discriminate against the Complainant.

I find that the Respondent did not discriminate against the Complainant for the reasons set out above.