Complainant

Respondent

Anonymised Parties

A Sales Executive

A Company

Representatives

Immogen Schneidlebach-Jones

O’Mara Geraghty McCourt Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00051072-001

09/06/2022

The complaint referred to the Commission on 9 June 2022 was that the complainant had been discriminated against by the respondent on grounds of disability in dismissing him for discriminatory reasons.  The complainant felt that management had concluded prior to him commencing employment that they didn’t want to employ him.  He felt that he had experienced discrimination based on his autism. 

The complainant believes he was subjected to discrimination by the respondent on grounds of disability due to the fact that he is autistic and has ADHD, Tourette syndrome, OCD and anxiety. 

The complainant’s disability is noticeable and can be seen.

The complainant informed the respondent’s HR Manager that he had Autism prior to his employment with the respondent commencing.

Following interviews and based on his experience, the complainant was offered a fixed-term contract for 12 months.  There was no mention of a probationary period.  The complainant commenced employment with the respondent on 25 April 2022. 

The complainant’s request for reasonable accommodation was ignored and no reasonable accommodation provisions were put in place for the complainant and adhered to by staff as part of the complainant’s training.  His needs in respect of working in an office environment, which would at a minimum consist of regular movement breaks, were not understood by staff.

The complainant’s employment was terminated by the respondent’s Head of Sales on 26 April 2022, without recourse to any procedure.  The complainant was informed that he was not a suitable fit for the company.  The complainant was confused and felt that he had been mistreated.  There was no reference to probation in the offer of employment to the complainant or the contract provided, which was fixed for a 12-month period.  The respondent’s HR manager was not aware of the complainant’s dismissal by the Head of Sales. 

The complainant experienced discrimination over two days during the training process by the Sales Manager’s less favourable treatment of him because he is an autistic male.

It was made clear to the respondent that the complainant would need reasonable accommodation in the form of a working from home position, the taking of breaks and to deal with the challenges the complainant would face in travelling to the respondent’s offices for training.

The complainant’s case is about a wrongful dismissal in that the respondent failed to adhere to any procedure in terminating the complainant’s employment and to provide reasons.  It was submitted that this failure was indicative of a failure on the part of the respondent to afford or explore the provision of reasonable accommodation for the complainant.  The real reason for the complainant’s dismissal was his disability, and a failure to understand and accommodate it.  The respondent’s determination that the complainant was not a suitable fit was based on the complainant’s disability. 

The respondent was aware of the complainant’s disability and failed to afford him the disciplinary procedure to which he was entitled.

Case-law was cited in support of the complainant’s case.

The complainant was employed by the respondent as a full-time Inside Sales Executive from 25 April to 26 April 2022. 

The complainant was offered the role after an initial meeting with the HR Manager and a subsequent interview held at the respondent’s office on 11 April 2022.

Following two days of training, the complainant’s employment was terminated on 26 April 2022 as the respondent deemed that he was not a suitable fit for the role. This was confirmed to the complainant in an email of 27 April 2022.  The primary reason for the decision that he was not a good fit was his general argumentative attitude and a lack of respect towards colleagues. 

The respondent was not aware of the complainant’s disability and was never asked to provide reasonable accommodation for the complainant.  At no stage did the complainant disclose a disability or make the respondent aware of a disability, including any need for any reasonable accommodations. 

The respondent denied that the complainant was discriminated against and submitted that the complainant had failed to establish a prima facie case of discrimination and to discharge the probative burden on him under section 85A of the Employment Equality Acts 1998-2015.  Case-law on section 85A was cited.

Dealing with this case under section 79(2A) of the Employment Equality Acts 1998-2015 (the “Acts”), my role is to make a decision, based on the written submissions of the parties, on the claims of discrimination against the respondent in relation to the complainant’s employment with the respondent from 25 April 2022 and the termination of that employment on 26 April 2022.  I have taken account of all submissions and supporting documentation received, up to and including a written submission on behalf of the complainant, received 4 June 2024.

Section 6(1) of the Acts provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) …”  In this case the relevant discriminatory ground is disability.

Section 8 of the Acts prohibits discrimination by an employer in relation to specific areas of employment, including access to employment, conditions of employment and training or experience for or in relation to employment.

Without prejudice to the general prohibition of discrimination in relation to conditions of employment, section 8(6) of the Acts provides that an employer shall be taken to discriminate against an employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee:-

“(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfer, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

Section 16 of the Acts sets out an employer’s obligation to reasonably accommodate those with disabilities.  Section 16(3) provides:

“(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) … “

Appropriate measures in relation to a person with a disability are defined in section 16(4) of the Acts.

Statutory time limits

Section 77(5) of the Acts provides, in relevant part, as follows:-

“(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.

(c) …”

Complaints of discriminatory treatment of the complainant by the respondent’s Sales Manager on grounds of the complainant being an autistic male and of a failure on the part of the respondent to provide reasonable accommodation in the interview process and over the 25 and 26 April 2022, were not the subject of the claim for redress referred to the Workplace Relations Commission on 9 June 2022, rather these complaints were raised for the first time in documentation submitted to the Workplace Relations Commission on behalf of the complainant, and exchanged with the respondent, on 6 September 2023.

The previously mentioned complaints relate to a period of employment from 25 to 26 April 2022 and an interview held prior to the complainant commencing employment on 25 April 2022.  I therefore find that these complaints, together with a complaint of sexual harassment referenced in submissions received 3 November 2023 and 12 April 2024, have been referred outside of the statutory time limits set out in section 77(5)(a) and (b) of the Acts, and accordingly that I do not have jurisdiction to investigate and make a decision on the complaints.  

I am satisfied that the complaint referred within the statutory timeframe set out above was a complaint against the respondent of discrimination in relation to the dismissal of the complainant for discriminatory reasons, more specifically, on grounds of his autism.

Complainant’s employment with the respondent

The complainant commenced employment with the respondent on 25 April 2022 as a full-time Inside Sales Executive on a 1 year fixed-term contract of employment.  The role carried hybrid work arrangements, allowing for remote work as agreed with the complainant’s Sales Manager.  Salary was €25,000 per annum plus commission.  The respondent terminated the complainant’s employment on 26 April 2022 deeming the complainant not a suitable fit for the role. 

Burden of Proof

Section 85A of the Acts addresses the burden of proof in cases under the Acts.  In the first instance a complainant must establish facts from which discrimination may be inferred; thereafter the burden of proof passes to the respondent to rebut the presumption of discrimination.  Section 85A states as follows:-

"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."

I note in particular the following dicta on section 85A and the establishment of facts from the Labour Court’s determination in Melbury Developments Ltd v Valpeters [2010] 21 ELR 64:-

“All that is required is that they be of sufficient significant 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 written submissions on behalf of the complainant, it was submitted that the complainant believed he was subjected to discrimination on grounds of disability due to the fact he is autistic and has ADHD, Tourette syndrome, OCD and anxiety.  It was submitted that the complainant’s disability is noticeable and that the complainant is open with everyone with respect to his disability and his needs.

The respondent did not dispute the complainant’s disability however its position is that it was unaware the complainant had a disability.  The respondent expressly disputed that a disability was obvious in any way.

The evidence before me did not support the assertion of discrimination due to the complainant being autistic and having ADHD, Tourette syndrome, OCD and anxiety.  In this regard, I note a communication of 4 October 2022 on behalf of the complainant to the respondent’s HR which includes a statement that the respondent knew about the complainant’s autism and makes no reference to other conditions.  

An issue I have very carefully considered is whether the respondent was aware that the complainant had a disability and whether that was the reason for the decision to terminate the complainant’s employment. 

It was at an unexpected meeting with the respondent’s HR Manager that the complainant learned of the job opportunity with the respondent.  The complainant was working for another company at the time.

On the complainant’s account he mentioned his disability and the need for reasonable accommodation in the form of working from home to the HR Manager at this meeting.    From submissions on behalf of the complainant, there were two interviews subsequent to this meeting: one unplanned interview with the HR Manager and a second interview with the respondent’s Sales Manager and Head of Sales. 

On the HR Manager’s account, there was the initial unexpected meeting with her and an interview with the respondent’s Sales Manager and Head of Sales and that at no point did the complainant mention to the HR Manager that he had a disability.  The respondent’s position is that at no point did the complainant mention to the HR Manager or at the interview with the Sales Manager and Head of Sales that he had a disability. 

The complainant has not put before me evidence to prove this material fact in issue or to influence my decision on this matter in dispute.  A psychology assessment report, dated 15 September 2016, was submitted by the complainant and sets out the complainant’s diagnoses, which includes Autism, however it is not the complainant’s case that this was provided to the respondent.   The complaint form and subsequent written submissions on behalf of the complainant do not expand on the date the complainant contends he mentioned his disability to the HR Manager. 

Furthermore, I have identified inconsistencies between the complainant’s account of when he says he mentioned his disability to the HR Manager at the first unexpected meeting and the submissions which state the complainant recalled discussing at length his disability in an interview with the HR Manager, after the first unexpected meeting.  I have also had regard to the fact that the job opportunity with the respondent, which was the subject of the discussion at the first unexpected meeting between the HR Manager and the complainant, was for a hybrid role.  This does not tally with the complainant’s account of having mentioned the need for reasonable accommodation in a home-based role.  I consider the submission made on behalf of the complainant that had the respondent followed a disciplinary procedure prior to terminating the complainant’s employment, the complainant’s needs would have come to light and rendered him successful in retaining his job, to be consistent with the respondent’s position that it was not aware of the complainant’s disability or that the complainant required accommodation in carrying out his role.    In his complaint statement, the complainant stated that he communicated clearly to the HR Manager that he had autism.  I note from a subsequent account that the complainant is certain he mentioned his disabilities by name in detail to the HR Manager and other staff.  These submissions are made contemporaneously with a submission that the complainant’s disability is noticeable and can be seen.

It is worth noting that the complainant’s case is that he informed the respondent, and was open, about his disability.  It was not the complainant’s case that the respondent ought to have known or suspected from behavioural indicators that the complainant has a disability.  For completeness, I note that the respondent expressly disputed that a disability was obvious. 

On the complainant’s account, it was from before he was offered the position that the Sales Manager and Head of Sales did not want the complainant in the role.  It was submitted that any reasonable person can clearly see the aim, and that a level of sheer hatred the managers had for the complainant is alarming.  It was submitted that this had to exist prior to the complainant’s employment. 

It is for the complainant to prove, as a matter of probability, the primary facts upon which he relies in asserting that the decision to terminate his employment was for discriminatory reasons.  On the documentation before me, I must conclude that there is insufficient evidence to find that the respondent was aware of a disability on the part of the complainant and to infer that the complainant was dismissed by reason of his disability.  Stating something to be so or to have occurred does not make it an established fact, particularly where the account is disputed.  I cannot elevate assertions that the complainant was denied basic employment equality rights and fair procedures, and by extension a submission that the respondent would have no interest in reasonable accommodation or exploring options, to the status of facts from which discrimination may be inferred.

I have considered case law relied upon by the complainant however the cases were predominantly concerned with an employer’s obligations under section 16 of the Acts on being made aware of an employee’s disability and of required adjustments.

The complainant has failed to establish facts from which discrimination can be inferred so as to shift the burden of proof to the respondent.  In such circumstances, I conclude the complaint of discrimination is not well-founded.

Various allegations raised in submissions on behalf of the complainant, which are entirely outside of the scope of the Acts and indeed of my jurisdiction under any other piece of legislation, were not taken into account in my adjudication of the complaint of discrimination under the Acts.  

In accordance with section 79 and section 79(2A) of the Employment Equality Acts, I find that the complaint is not well founded for the reasons set out above.

Disability discrimination – Reasonable accommodation – Prima facie case - Section 79(2A) procedure