Complainant

Respondent

Parties

Derek  Lynott

An Garda Siochana

Representatives

 Fiona Pekaar BL- Andrew Freeman Sean Costello Solicitors

Emma Cassidy BL - Karen MacNamara Chief State Solicitor's Office

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-00049754-001

19/04/2022

The complaint is one of a failure to provide a reasonable accommodation to the Complainant which would have allowed him to remain at the rank of Inspector in An Garda Síochána. Promotion to the rank of Inspector in December 2020 followed a somewhat unusual appointments process which had occurred as far back as 2017. Details of the appointment process were provided to the hearing – noting that the Complainant was not the only Sergeant who benefited from the delayed process. The Complainant was informed that he was to be assigned to a vacant post in the Donegal Division-based in Letterkenny. Prior to his promotion to Inspector in December 2020, the Complainant held the rank of Sergeant in Ballina while also on a temporary assignment to Castlebar leading into 2020. His request for reversion  to the rank of Sergeant also in Ballina was approved in November 2021. The assignment to the location of Ballina as a Sergeant is approved as an exemption, due to family commitments.

On learning of his promotion and assignment to Letterkenny in December 2020, the Complainant informed the Respondent of his disability which was first diagnosed in 2010 but not disclosed at any stage prior to his promotion to Inspector. Following a report from his GP provided to the Respondent, the Complainant was referred to Occupational Health who conducted a phone review. The GP report recommended that the Complainant not be moved away from County Mayo and the Occupational Report agreed with that opinion while  recommending a review after three months(which the Respondent did not arrange).

In January 2021, prior to the CMO report, the Complainant was informed that his assignment to Letterkenny was deferred and he was assigned to an Inspector role in Swinford County Mayo by Chief Superintendent Tony Healy as a temporary transfer. Nothing of significance occurred between January and the end of June 2021, other than perhaps the retirement of Chief Superintendent Healy around the end of June.

There is no dispute between the parties that the Complainant has a qualifying disability for the purposes of the definition related to the protected ground under the Employment Equality Act.

In early July  an internal management memorandum requested an urgent case conference on the matter-i.e., the assignment of the Complainant. That memo from the Regional Commander for the North West Region expressed the view that the vacancy in Letterkenny ‘is a critical one’ whereas the allocation to Mayo ‘is surplus to requirements’.

At  the case conference later that month attended by the CMO, accommodations proposed by the Chief Superintendent Donegal  regarding hours of work, medical supports in the locality and a separate office were noted. The notes of the meeting record the opinion of the CMO that any choice to commute(rather than relocate to Donegal) was a “personal decision.”

The accommodations offered by the Respondent as advised by the Chief Superintendent Donegal were rejected by the Complainant. The core issue which remained unresolved between the Complainant and the Respondent was that of the location of the promotional post.

On August 27 a Personnel Bulletin 16/2020 advised of the decision to assign the Complainant to Letterkenny.

On 7 September, the Complainant through his solicitor  enclosing various documents and seeking a review of the decision to transfer the Complainant.

On 10 September C/Super Ferry confirmed the assignment to Letterkenny advising that if the Complainant wished to revert to the rank of Sergeant, he was obliged to submit an application to his C/Superintendent (Donegal), a direction which was repeated on 21 and 28.09.21.

On 13 September, the solicitor for the Complainant again wrote to C/Superintendent Ferry. On this occasion the solicitor referred to what might be described as interpersonal issues  with the C /Superintendent in Donegal when posted there previously as a Sergeant.

On 13 September, the Complainant informed the Respondent of his intention to revert to the post of Sergeant.

On 13 September, the Complainant met with Chief Superintendent McMahon and again confirmed that he cannot relocate to Donegal.

On 28 September, the Complainant formally applied to revert to the rank of Sergeant in the required manner.

Between 13 September and 11 November, the Complainant was out sick.

On 3 November, the Solicitor for the Complainant inquired as to whether the application to revert had being considered and whether consideration was being given to an accommodation in Mayo. A response advised that the Commissioner ‘is currently considering the application of Inspector Lynott’.

On 19.11.2021 the Respondent approved the reversion of the Complainant to the rank of Sergeant. The evidence of the Complainant is that he was informed of this decision on or around November 20th, 2021.On foot of the decision of the Commissioner he reverted to the post of Sergeant in Ballina on November 24th, 2021.

19.04.22 Complaint received by WRC.

The dates on which the acts of discrimination (if any) could have occurred are disputed to the extent that they gave rise to an extensive debate about time limits for the purposes of section 77 of the Employment Equality Act. Essentially the debate is whether it is the events of September or November 2021 which apply for the purposes of the time limits. This matter of time limits is the first issue to be decided. If the finding is in favour of the Complainant on the matter of time limits, the next decision required is whether or not the Respondent met their obligations under Section 16 in respect of accommodating the Complainant’s disability and /or complied with the provisions of Section 6 with regard to a comparator for the purposes of a complaint of discrimination.  Should the Complainant succeed in the matter of reasonable accommodation, there was a further dispute regarding the extent of redress which could be decided by an adjudication officer.

The history of the case and the issues in contention were the subject of extensive written and oral submissions provided in advance of a virtual hearing held in October 2023 with supplementary submissions requested followed by two days of an in person hearing on 25 and 26 January 2024.

Time Limit-Position of the Complainant

On behalf of the Complainant, reference was made to the opinion of M. Bolger SC that where there is ongoing discrimination this can allow for a different six-month period to be used in discrimination cases where it can be shown that the discrimination was ongoing. The Complainant was forced into the position where he had to seek the demotion back to Sergeant. That application was made on 28th September 2021 and no decision was made to revert him until 19th November 2021 which was the date on which he was notified that his request to revert to Sergeant had been accepted(as per the written submission, whereas the Complainant gave evidence the date he was informed of the decision to allow him to revert was November 20th).A letter of 3rd November 2021 on behalf of the Complainant was introduced where an accommodation was still being sought on behalf of the Complainant and there was no reply to that letter until 21st November 2021. The situation was very live after September 2021 when the Complainant felt that he had no option  to revert back to the rank of Sergeant because of the actions of the employer in deciding that he was obliged to transfer to Letterkenny.

At all stages while his application to revert to Sergeant was not accepted, he held hope that his request for an accommodation could be met.

In reply to the Respondent, the Complainant’s representative contended that the issue and the question of an accommodation was ongoing until November 2021. The argument that the situation crystallised on 14th September 2021 is not the case. This issue was live and continuous until 19th November[when the Commissioner made his decision].

It was submitted that each case must be decided on its own merits; that the Complainant in this case was of the view that while his application to revert to Sergeant was still open that there was an internal discussion process at which these issues were being considered and his solicitor had sought clarification on the situation and made representations. It was only when it was confirmed to him on 19th November 2021 that his application for revert to that of Sergeant was accepted that he understood the process thereafter was concluded.

Evidence of Derek Lynott on the matter of the time limit.

The Complainant gave evidence that he had made his application to revert to the rank of Sergeant under code 9.3 and not 9.16 which it should have been. He wanted at all times to keep his rank and he should have been asked to make a further application under 9.16 but this was never done. On 13th September 2021 he was refused an accommodation at Inspector level and as he was in living and working in Mayo, he had no option but to seek to revert back to Sergeant at that stage. The situation was ongoing from that point until 19th November 2021 and through his data access request, he became aware of communications internally in An Garda Síochána about seeking to accommodate him. He confirmed that he was aware of the letter sent by his solicitor on 3rd November and confirmed there was no response to that letter seeking an accommodation. He believes he received the decision of the Commissioner  of 19 November on or around November 20th.

The main issue- reasonable accommodation

The Complainant has a disability for the purposes of the EEA. The disability was first diagnosed in 2010. As time passed the Complainant experienced fatigue after driving. He worked regular hours in Ballina as a Sergeant. He had established excellent medical and family supports though his GP. In 2010 he was promoted to Sergeant and worked for three and a half years in Raphoe Co Donegal under the management of Chief Inspector McGinn. He applied for a transfer to Westport in 2013 and later obtained an exemption to the rules regarding working within distance of his family home. The exemption was granted on family grounds, to allow him to provide support for his aging parents. As he was suffering from his disability on a worse scale than when he was allocated to Raphoe, the Complainant was advised by his GP in December 2020 that due to his medical needs, a relocation was not advised or recommended referring to the risk of complications. It was at this point that the Complainant first informed the Respondent of his disability. Support for his application to be assigned as an Inspector in Mayo was forthcoming-from the Assistant Principal Business and his Chief Superintendent, Tony Healy.

The Complainant was reviewed by a Specialist in Occupational Health on January 5th, 2021. His report recommended a review in three months and in the event of clarification being required-a case conference was advised. The Chief Superintendent Donegal expressed concern in writing at the proposal to defer the assignment to Donegal-she suggested a case conference. Her concerns referred to the availability of medical support in Letterkenny and the potential for a poor precedent if someone was promoted if as it appears, they are not fit for their duties. The reference to the need to obtain support from his family as a reason for the non-redeployment was questioned. The stance taken by the C/Superintendent Donegal reflected animus towards the Complainant linked directly to a previous history between them.

In January 2021, Chief Superintendent Healy found an accommodation for the Complainant in Mayo.

A case conference was arranged in July 2021-of which the Complainant had no knowledge. That conference was convened at the request of an Assistant Commissioner. On 27 August, a personnel bulletin was published which directed that the Complainant be transferred to Letterkenny on 14th September 2021. Representations on his behalf failed to bring about a change in the position and the Complainant was instructed he had to apply to revert to the rank of Sergeant.

The accommodations which were offered  by the Respondent were insufficient to meet the Complainants medical needs. The principal accommodation required was that he remain assigned to a position in Mayo and not be required to transfer to Letterkenny.

The Complainant was accommodated in Mayo for  a period of almost nine months. That he was so accommodated, shows that the Respondent has a range of positions available to them to offer the Complainant a reasonable accommodation without the need to transfer him to Letterkenny. The vacancy in Letterkenny remained vacant until 2022,which suggests it was not a vacancy which had to be filled by the Complainant.

The Respondent has in the past provided reasonable accommodation for Inspectors, for example on family grounds. It is more commonplace to promote a newly appointed Inspector to a location that is within commuting distance of their home.

An analysis of those promoted to Inspector between 2018 and 2020 shows that only three allocations involve a distance of more that 78km.

Reference was made to the Nano Nagle Case-specifically the conclusions in par. 2,3 and 6.

The three elements of accommodation required by the Complainant were:

a.     Regular routine with daytime shifts to minimise fatigue.

It is accepted that such accommodation would be provided.

b.     No long-distance driving except in exceptional circumstances

The expectation that the Complainant would get accommodation in his new centre was unrealistic in the circumstances of the Complainants medical condition, age, his residential situation and the fact that his elderly parents rely on him and have done so for some years. Even if he were to move to Letterkenny he would have to commute to Ballina on a regular basis to keep up with his family commitments there.

c.      Re-deployment was not recommended by his GP as he should remain close to his home and close to his existing medical supports.

d.     The Respondents suggestion that he attend at Letterkenny Hospital for medical support when he is under the medical support of a local team in Ballina where he attends for a procedure on an irregular basis and at short notice and had never attended a hospital for treatment or support, was not reasonable. To start with a new medical team would be detrimental to his wellbeing.

Regarding the case conference of 22nd July 2021-there was a glaring absence of any consultation and the failure to consult with his medical advisers constitutes a failure to consider reasonable accommodation. The letter from the Assistant Commissioner of 5th July convening that conference shows that the decision was a forgone conclusion and the case conference was merely a tick box exercise. The Respondent did not even try to offer a reasonable accommodation.

The Complainant remains fully competent and available to undertake the duties associated with the role of Inspector and therefore capable of performing the job as if he had no disability. The reasonable accommodation proposed does not impose a disproportionate burden on the Respondent. The circumstances of the Complainant are exceptional, which can be applied to a decision about a transfer and reasonable accommodation was not made.

 In a supplementary submission(requested at the first day of hearing) the Complainants side clarified that they are relying on the medical evidence of the Complainants GP, specifically that long distance driving  causes exceptional fatigue on the day and for several days afterwards. He recommends only driving long distances in exceptional circumstances.

The Complainant is relying on section 16(3)(b)(i) i.e., the employer shall take appropriate measures where needed in a particular case, to enable a person who has a disability- to have access to employment.

In reference to XXXX v HR Rail SA the Court of Justice referred to the reassignment to another job may constitute reasonable accommodation…(subject to the disproportionate element).On that basis, it should have been a last resort for the Respondent to accede to the request to revert to the position of Sergeant. That the Complainant was able to carry out his duties perfectly competently for a period of months demonstrates that this(the continued assignment to a position in Mayo) was not a disproportionate burden.

Regarding a comparator, the Complainant has demonstrated that a long-distance relocation on promotion was not the norm. It is not within his knowledge to show why other Inspectors were not moved long distances on promotion.

On the burden of proof, the Complainant points to the correspondence from Occupational Health dated 5th January 2021 supporting the recommendations of the GP; he has shown the Respondent was not willing to accommodate a working  location which did not involve a long commute, despite the fact that reasonable accommodation was possible for nine months. No review of the Complainants medical condition was taken after three months contrary to the recommendation of  Occ. Health in January 2021. This demonstrates at a prima facie level a complete unwillingness on the part of the Respondent to even consider the Applicants request.

Redress sought

Reinstatement as Inspector and allocation to a posting within a reasonable commuting distance from his medical needs, backdated to 19 November 2021 or in the alternative,

Compensation for the loss of the increase in salary from 19th November 2021 to date and into the future, and

Compensation for the loss of pension resulting from his reversal to Sergeant.

Evidence of Derek Lynott

The Complainant gave evidence that in 2009/10 his health condition was diagnosed, and this did not impede his work at that time confirming that he had taken up postings around the country in various locations. In 2017 he was working in Ballina as a Sergeant, a 20-minute commute from his home, and in 2019 he was moved to Castlebar which was a further distance and commute from his home. Asked about his health, he said that at the time of the application for the Inspector competition that his health was fine, that he was managing, and this was in 2017. He referred to fatigue after driving; that the posting in Castlebar involved longer periods on the road leading up to 2020. He gave evidence that he did not say anything about his condition to management at any stage and did not inform them when he made the application for Inspector as he did not want his condition to be known. The witness accepted that he did know it was a possibility that he would be moved if he was promoted to Inspector. Asked why he did not tell management at the time that he would not be available for a transfer, the witness stated that in his experience the precedent was that people were not being transferred away from their area on promotion. When notified that his assignment as an Inspector was to be to Letterkenny he spoke to his own doctor and his family. The medical advice was that he should not take the promotion if it meant the transfer as this would result in a change in his environment and the move would be detrimental. At that point he was experiencing more fatigue because of driving. The Complainant obtained a medical report from his GP which was forwarded to an MG and EAS and a person CM sent a letter to the superintendent that his transfer to Letterkenny be reviewed and considered. On 5th January he had a telephone assessment with the CMO. The transfer was due to take place on 12th January 2021. On 11th January, the welfare officer contacted him to say that the transfer was deferred as a result of the report provided by the CMO. Asked about his understanding of whether this was a temporary deferral, the Complainant stated yes it was indefinite without a date, but he was hoping that it would be converted into a permanent assignment in Mayo. From the time of his appointment in Swinford he performed a dual role. Asked about the three-month review referenced in the CMO report of 5th January, the Complainant stated that nobody contacted him after that date about a follow up review, nor did anyone contact his GP after that date. On 27th August 2021, a bulletin issued re his transfer which he learned through someone ringing him to tell him that they had seen this on a computer listing. It was the first he heard of it. The Complainant was asked to explain why the closeness of medical facilities and the offer of 9 to 5 hours were not a reasonable accommodation. He stated that in relation to fatigue he would have no family structure near to him; he would be absent from home. The effect of the fatigue is that he would be wrecked, and it could take him a couple of days to catch up physically. He had done a lot of driving in Swinford as part of his role of policing the roads, but he could not undertake a two-hour commute. He could manage the situation in Mayo where he could stop and take breaks and once he completed his required hours he was going home to his family and supports which he would not be doing in Letterkenny. In clarifying what was meant by the commute arrangement, which is referred to by the Respondent, his intention was that he would drive one day, he would work five days and then drive home. This meant two days of driving out of seven. He was advised that he needed to have his family support and his community medical services close to him. Regarding the suggestion that he could use the facilities at Letterkenny Hospital, the Complainant stated that he had never attended a hospital at any time since being diagnosed and relied on the relationships and knowledge of his condition built up over years with his local GP service. He helped his parents out and he had a previous code exemption for this purpose. There would be no financial support for him in a relocation unless he moved his home and his family to Donegal, and he was not intending to do that so therefore he would be commuting back and forth to his home each week. Regarding the meeting with C/Super McMahon in September 2021 he informed Chief Superintendent McMahon that his GP had advised him that he should not take the transfer, he should not relocate, and Superintendent McMahon’s response was that he would have to do what the GP advised. Asked about the report of the meeting where is said to have referred to a previous history involving C/Superintendent McGinn, that part of the conversation related to a data protection issue which he spoke about which involved that C/Superintendent. He did not recall using the term penalised at that meeting. Under cross-examination the Complainant stated that he did not think he was on a panel after 2017. He understood he was unsuccessful after the 2017 competition and believes that it was only sometime in mid-2020 that he learned that there was the possibility of a promotion from the original competition. In that competition there had been tier one and tier two and he was in tier two after the second round of interviews. It was put to the Complainant that he had now clarified that this was to be a weekly commute, that the work pattern was accepted and that part of his reasons for not transferring were family reasons unrelated to any disability. Asked was he suggesting that there was no community health service that he could avail of in Letterkenny, the Complainant stated that he had been told by his previous doctor who had now retired that he should maintain the same medical advisor at all times for continuity.

It was put to the Complainant that the implication from the note of the meeting by Chief Superintendent McMahon and a later report submitted by a Superintendent  Morrow  to Occ. Health suggested  that aside from health issues, he did not want to transfer to Letterkenny because he did not want to work there given the previous history involving the former Superintendent McGinn. The Complainant confirmed that there were issues while he was there(Letterkenny) previously. Prior to 12 January 2021 Superintendent McGinn had written to him welcoming him to the division. He took that welcome at face value, and it is what he would expect of a professional person in that situation. Asked had he spoken to Superintendent Morrow about his previous history with Superintendent McGinn, he stated that he may have chatted to him while he was working there and reporting to him, but he did not recall that terminology in a conversation. As a Guard he was not consulted in any way about the contents of a request or referral to the CMO.

It was put to the Complainant that in terms of an accommodation within Mayo allowing for all the different circumstances that must be taken into account that an employer would not be expected to create a position for a person on reasonable accommodation in general terms, allowing for all of the different variables and specifics (which might exist). In that light he was asked  was there a vacancy for an Inspector in Mayo near to his home when he sought his reasonable accommodation and on the different dates after that. The Complainant stated that he believed there was a vacancy in the role that he performed and that others were transferred into vacancies in Mayo, and he provided names of people he believed were transferred into vacancies. This discussion took place in the context of the note from an Assistant Commissioner who stated that the position held by the Complainant was surplus to requirements. Regarding the note of the meeting of 13th September 2021 and the reference to stress caused by the prospect of transferring to Letterkenny, the Complainant stated that he was out sick later that day that he was stressed because he believed that he was going to be reverted to the position of Inspector with immediate effect. His position at the meeting was that on medical advice that he was not transferring to Letterkenny and that was his issue. He accepted that there was a reference by C/Super McMahon to him  taking up the position in Letterkenny and possibly returning to Mayo at a later stage, but there was no timeline on that position.

Witness for the Complainant - Tony Healy, Retired Chief Superintendent.

The witness stated that in or around December 2020 the Complainant had spoken to him about a medical condition after he learned of his assignment to Letterkenny as an Inspector. The witness sought a review of his medical circumstances, and a letter was sent by MG which was followed by the medical assessment on 5th January 2021. Regarding the post to which the Complainant was assigned in January 2021 the position was that he had asked for the Complainant to be retained for a period of time in Swinford as the person who was to take over his role as Sergeant was absent due to Covid and he wanted to have a managed handover between the two. He sought approval for this arrangement, but this was rejected. When he received the medical report it was his role to provide the Complainant with a temporary position which he did in a vacancy in Swinford where there were public order issues at the time. The role fulfilled by the Complainant was an ongoing vacancy covering Claremorris and Swinford and the Complainant continued in that role based in Swinford at the rank of Inspector and was in that position when the witness retired on 28th June 2021. The witness explained that an assignment to a permanent vacancy was not within his remit only a temporary assignment, that the permanent assignment (on medical grounds) would be discussed between HR and the CMO and the Deputy Commissioner would be the decision-maker. The witness clarified that the divisional clerk role performed by the Complainant was that of a Sergeant in Castlebar and it was this role in which he wished to have a changeover period in a handover to the new appointee who was absent on sick leave at the time.

Time Limit

It is the position of the Respondent that the actual date for the refusal of the reasonable accommodation sought by the Complainant was 14th September 2021 in correspondence to the Complainant’s solicitor. On 30th September 2021 the Complainant formally applied for reversion to the rank of Sergeant and therefore 30 September is the last possible date which could have been used as the reference point for the action of the employer on the reasonable accommodation. Both of these dates render the date of complaint to the WRC outside the six-month time limit provided for in section 77 (5) At that time, the Complainant had legal representation(not his current representation) and had available to him the necessary advice as to how he needed to proceed if he wished to make a complaint to the WRC. It is a matter of fact and law that nothing happened after 30th September 2021 which represents an omission on the part of the employer in terms of a refusal to provide the reasonable accommodation which the Complainant says should have been provided to him.

The Respondent relied in particular on the decision in PfizerPharmaceuticals Ireland v Whelan [EDA 24/2019] in response to the claim of a continuum of discrimination. The position as a matter of fact is that after September 2021 the matter of an accommodation was no longer being discussed having been decided in July 2021. Whether it was regulation 9.3 or regulation 16 is irrelevant, the Complainant did not want the transfer to Letterkenny as an Inspector. Once he was informed of the decision on 14th September that he was to transfer to Letterkenny with effect from that date there was no further act by the employer which could give rise to a complaint of discrimination or a failure to provide a reasonable accommodation by omission. The process of deciding on the application for the reasonable accommodation and the process for the reversion to the rank of Inspector are entirely separate and cannot be joined so as to make an argument of a continuum of discrimination. The Employment Equality Act is very specific on the time limits and what must occur within the specified time limits.

Hope is a subjective and not an objective test to decide this matter as to what were the decisions or omissions by the Respondent and when they occurred. These are matters of fact and law.

Respondent Position on the main issue-reasonable accommodation

The Respondent denies the totality of the allegations and in particular refutes any allegation that the Complainant was discriminated against as alleged or at all. The Respondent expressed alarm at the submissions regarding members of the force who are not party to the complaint and where alleged matters are unrelated to this complaint and cannot assist the decision of the WRC. This was described as an abuse of process and to be marked against the Complainant’s credibility. The Respondent also noted a plethora of factual inaccuracies in the Complainant’s submission. It is submitted that the Complainant unilaterally sought to revert to the rank of Sergeant in circumstances where his promotion to Inspector required a transfer to a specific location to which he was not agreeable for a number of documented historical personal and interpersonal reasons as noted in correspondence from his then solicitor and a note of a meeting with Chief Superintendent McMahon.

The Respondent contested the statement that the Complainant was promoted to Inspector in Swinford Garda Station. Members of An Garda Síochána do not apply to be promoted to specific stations, they apply en masse to be promoted in rank and then they are allocated to specific stations. At all times, the Complainant was promoted in rank to Inspector and was allocated to Letterkenny Garda Station but his transfer to Letterkenny was deferred. In 2020 it was decided that a further allocation of Inspectors was required to fulfil roles nationwide including covering for major events such as Covid and the imminent Brexit which might have returned the border counties to international border status. All promoted members are recommended to move on promotion in order to preserve best practice and the best interests of the individual concerned and in order to allow for professional supervisory development at the higher rank. The transfer allocation process includes the consideration of many factors which are mainly operational in nature.

Donegal is a unique An Garda Síochána Division due to its geographic location forming a border with Northern Ireland. The filling of three vacancies in Donegal, two in Letterkenny and one in Ballyshannon, were high priority. The most appropriate members on the panel who were not already in the Donegal Division and were closest geographically to that division were the Complainant and one other (TB). TB was transferred from Carrick-on-Shannon to Letterkenny which is approximately 150km from Donegal and approximately 138km from his home –  a particular point given the allegations and inferences made by the Complainant in respect of the distance of his transfer.

The Complainant had been waiting on the order of merit for approximately three years for promotion and during that time he never informed the Respondent that he had a disability nor that he required accommodation for this disability. Referring to the medical report from occupational health received on the 11th of January 2021, contrary to the insinuations in both the complaint form and the Complainant’s solicitor’s correspondence at the time, the CMO only refers to any transfer in the context of a “commute” which was not an issue in circumstances where the transfer in question was not a commutable transfer and required relocation, as the Complainant had previously undertaken in 2010. The Complainant had already stated that he would not relocate his residence due to family and personal commitments that he had previously described as financial.

At all times, the C/Supt McGinn (Donegal) advocated for the Complainant to transfer to Letterkenny and was willing to put in place whatever measures he required to ensure a safe and comfortable workplace in accordance with the CMO’s opinion. She was anxious that he take up his position as soon as possible due to the very specific policing need in that division. The allocation to Swinford Garda Station on the 18th of January 2021 was on a “temporary transfer basis”. For the duration of the temporary transfer the Complainant did not supply the Respondent with any further medical information, nor did he avail of sick leave or request any appointments with the CMO despite being on notice that his allocation to this location was temporary.

Notwithstanding the Complainant’s assertions that long commutes were detrimental to his health, during the period that he was working in Swinford, as his temporary title of Roads and Policing Inspector would indicate, he in fact engaged in frequent long-distance driving as is evidenced by his travelling records for certified expenses for the six-month period in question. The distances recorded in the appended travelling expenses showed travel per month of 800 to 900 odd kilometres over the period February to August 2021. No evidence has been provided to support the allegations made by the Complainant in respect of the convening and conduct of the case conference which occurred on the 22nd of July 2021. C/Supt McMahon met the Complainant on the 13th of September 2021 to discuss alternative options as requested by the Complainant’s solicitor. The account of that meeting from C/Supt McMahon speaks to the Complainant referring to alleged interpersonal issues as the primary reason as to why he did not wish to work in Donegal. It is also clear from the C/Supt’s account of that meeting that the Complainant had already decided by that date to revert to the position of Sergeant. The Complainant reported sick on the 13th of September 2021 which resulted in a referral to occupational health, the report of which dated the 4th of October 2021 noted, “Has been subject to transfer to Donegal and reported sick as a result of stress linked to previous duties there” and “Inspector Lynott reports previous issues when posted to Donegal which caused significant stress. This is the background to his current absence.” In the course of telephone discussions with the solicitor for the Complainant C/Supt Ferry advised specifically that given the period that had elapsed since the original transfer bulletin that the Complainant would be eligible in short course to apply for a transfer from Letterkenny in the ordinary way and that it was very likely that he would be successful in that application. The Respondent actively tried to prevent the Complainant from reverting in rank. The representations to the Complainant’s solicitor on behalf of the Respondent were refuted offhand irrespective of how reasonable they were in the circumstances.

The existence of a disability is not sufficient to discharge the burden under section 85A and the Respondent relies on the jurisprudence in the decisions of Minister for Education and Science v A Worker [EDA087] and Southern Health Board v Mitchell [2001] ELR 201 respectively. Moreover, the medical evidence submitted is addressed to the CMO not to the Respondent. Therefore, the only medical opinion that the Respondent has the right to consider and review is that of the CMO. The CMO stated the Complainant was fit to work and in particular stated that the decision to commute was “a matter for Insp. Lynott.” The WRC, a statutory body is being asked to accept as a matter of fact and law that the Respondent has unofficially accommodated members with young families or for various other reasons and that these undefined and unsubstantiated examples are sufficient to render a finding of formal discrimination on the grounds of disability. The assertion that the Respondent has a range of positions available to them to offer the Applicant reasonable accommodation without the need to transfer to Letterkenny is incorrect. The critical policing requirement at the time was Letterkenny. The Respondent was willing to provide all of the accommodations that the Complainant only requested after the transfer allocations were announced. The statement that between 2018 and 2020 all Inspectors who were promoted from Sergeant to Inspector were not moved more than 75km away from their previous post is not correct and in any event its relevance for the purposes of a complaint for breach of the EEA is not clear. The transfer allocations were announced on the 8th of December 2020 and the Complainant did not advise the Respondent until approximately a week after that date that he had a disability, no medical documentation had ever been submitted in that regard up to that time and the WRC will respectfully note the relevant jurisprudence accordingly.

Finally, to address the allocation to Ballina specifically, analysis of the members of the panel quickly identified that #247 was the most suitable member to fill the Inspector vacancy in Ballina as he had not previously served as a Sergeant there whereas the Complainant had served as a Sergeant in Ballina and was filling the role of Sergeant in Charge. The Respondent rejects references to the 2023 bulletin containing three promotions and transfers to the rank of Inspector within the western region to include an appointment to Ballina as indicating the wide scope for accommodation within the organisation. The transfer in question arose on foot of a promotional round in 2022 and the Complainant lodged his complaint form on 19th April 2021. The WRC has no jurisdiction to consider a transfer bulletin more than a year after a lodgement of the complaint form and almost three years after the relevant promotional transfer bulletin. Members are transferred in accordance with the requirements of the Respondent which, unlike many employers, is obliged to have a presence everywhere in the State so it is self-evident that there are many locations to which members may be transferred. The critical consideration for the Respondent is what resources those locations require.

Responding to the allegation of discrimination on grounds of disability, the Respondent submitted that the geographical transfer of promoted members is integral to the functioning of the Respondent. Transfers are a fundamental element of the Respondent’s promotional resourcing, and each member is asked before applying for promotion to confirm if he/she is willing to transfer accordingly. Referring to section (1)(a), the comparator, any claim for discrimination other than pregnancy discrimination is unsustainable unless an appropriate comparator is identified.

To rely on a hypothetical comparator (which he has not) the Complainant must provide an evidential basis that such 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 Bammac Contracting Ltd v Zilys and Volkovas, EDA1022). The Complainant cannot state with any authority based in fact that the Respondent would have treated any other comparable member of staff differently to him under the same circumstances. This is because all members on promotion are liable to transfer pursuant to the Code and the Complainant specifically agreed to this when completing the application. Where all Garda are expected to transfer and accept that they can be transferred to any location on promotion, it is simply untenable to suggest that the Complainant was treated less favourably in any context.

Under reasonable accommodation, the Respondent is entitled to rely on the CMO’s report and oral representations in this regard and indeed it is clear from the correspondence from C/Supt McGinn that she would have facilitated all of the other suggested appropriate accommodations such as restricted hours, solo workspace etc. and would ensure a safe and comfortable working environment. However, through his legal advisors, the Complainant then confirmed in writing effectively that he did not trust C/Supt to provide the stated accommodations. This is an untenable position to adopt and then subsequently claim a breach of section 16 of the Act and that he was not consulted. The accommodations offered to the Complainant clearly satisfied the requirements of section 16(3) of the EEA.

Redress

The specific reliefs sought by the Complainant are not within the gift of the WRC to award pursuant to the Acts. The reliefs sought are requesting the WRC to direct the Respondent Commissioner to pay an employee indefinitely at the rate of a position that he does not hold. As a matter of law that cannot happen. A Garda cannot be paid the rate of a position that he/she does not hold as a matter of law. The only remedy that can arise is compensation within the parameters of s.82(4). In the event that the adjudication officer finds that the Acts have been breached in circumstances where the Respondent clearly offered the accommodations requested and they were rejected, it was submitted that the dictum set out in Hamill v The Department of Defence[ADJ/00031432] wherein the adjudication officer held that the Complainant had been discriminated against but that an award of compensation was not warranted in all of the circumstances is the one which should be followed.

At the commencement of Day 2 in light of the evidence of Tony Healy the Respondent withdrew paragraph 23 of their most recent submission regarding the assignment of the Complainant to that of clerk in Ballina, the implication being that it was accepted that the Complainant had performed the duties of an Inspector in Mayo.

During the hearing, following the evidence of C/Super Ferry, the Respondent also withdrew sections of their submission which suggested that between 2017 and 2020 the Complainant knew that he was on a list for promotion, conceding that this was not the case.

Reasonable Accommodation Witness for the Respondent – C/ Super McMahon

The witness stated that in June 2021 he had responsibility for two divisions and the transition of new operational arrangements which occurred in 2022 where there was a change from two divisions to one. Asked how he knew the Complainant, the witness replied that he believed that they first met in September 2021 at the meeting on 13 September. Asked how he knew of the Complainant’s medical condition, he stated that he was aware that he was considering reverting in rank. As this was a serious move he wanted to have a proper discussion so that the Complainant could make an informed decision and to make sure that this was the case. Asked about the evidence of the Complainant that he had no problem with T. McGinn as was recorded in the note of that meeting, (which was provided to Garda management at their request on the 20th of June 2023) the witness confirmed that he met the Complainant at 1 pm that date. He took notes and immediately after the meeting he made a record of the meeting. Therefore, he was relying on his notes that were taken at the time. Asked about the primary reason for not wishing to take a transfer which  the Complainant gave at the meeting, the witness stated that his recollection is that there were three reasons given. The Complainant spoke very directly about work problems he had experienced not too long ago up in Donegal, and he recalls being particularly interested in those. He had an awareness of the medical issue himself and he probably did not inquire too much into that. The three reasons which were given by the Complainant were: (1) an issue he had before in that location; (2) that he was being punished for a role that he took on previously; and (3) disability. The Complainant’s position was he did not want to move and was not going.

Asked was there a vacancy in Mayo at Inspector level in June 2021, the witness replied that Mayo was at a point of moving to a different model and the work which was performed by the Complainant in Swinford was to move to Claremorris going from Swinford to a new Division Mayo North. Transfers related to those moves occurred in September 2022 when decisions were made about the number of Inspectors. The witness stated it is somewhat confusing as to whether there was or was not a vacancy. Under cross-examination the witness said it may have been him or the Complainant who mentioned the word punished, he was not certain that the Complainant used the term.

The evidence of Chief Superintendent Denis Ferry.

The witness was introduced on the basis that he would provide evidence of the internal process for deciding on promotions and his discussions and letters exchanged with the Complainant’s then solicitor. The witness stated that he was a Chief Superintendent since 2019 initially assigned to the Wexford Division and now with HRM in GHQ. One of his core jobs is the allocation of resources across the ranks from appointments, transfers, promotions and the filling of vacancies arising. The number of vacancies in the ranks from the overall total of 15,000 is determined within the control framework and the number of approved posts at Inspector level currently stands at 482. Asked about the filling of positions from the 2017 competition, the witness explained that for various reasons filling of vacancies had been delayed and normally circulars would issue on a regular basis as frequently as every two weeks regarding arrangements for transfers or promotions and so on, all related to the filling of vacancies. He explained that Ms G who is referenced in correspondence cited by the Complainant has an administration function at AP level to support the admin function within a division. She had no role in the allocation of staff; that everyone is assigned by HQ based on what the priorities are. HQ will ask the divisions for critical vacancies, and these are filled geographically and notified through a bulletin based on the available allocation. Asked of the role of chief superintendents regarding the location to which individual staff are assigned, the witness said that they have no influence; staff are assigned to a priority vacancy. The witness explained that there is a difference between an allocation to a post and a transfer. The decision is made to allocate a person to a particular post and after allocation the appointee can apply for a transfer. There are criteria for dealing with requests for transfers which are essentially that there must be a vacancy and then there must be a backfill available to fill the consequent vacancy. The witness confirmed that Covid did have an impact on conducting competitions and there were delays in filling posts. In relation to CMO referrals Covid did have an impact as in person assessments were not possible and there were at times delayed reports. Asked about a code 9 exemption (for family reasons referenced by the Complainant in his evidence) the witness explained that there are criteria for minimum distances for assignment of staff related to their home area. For a new appointee, the distance would be a minimum of 50 kilometres and then with service it could reduce to 32 kilometres. For the Chief Superintendent position for example it could be in a different County such as his own situation where he was assigned to Wexford. If there was no operational reason for not allocating a person nearer to home, this could be accommodated at times(an exemption). In relation to the allocation of promoted Inspectors, the principle would be that they would be appointed to a different role not in their home district and that they would move away from their own area for a period of time, for example, to another part of the district or division.

Asked about the 2017 competition, the witness stated that by July 2020 there were 105 vacancies at Inspector level and an even greater number of vacancies at the level of Sergeant. Management went for a review in 2021 as to whether they could use the unsuccessful candidates from the 2017 competition of which there were ninety-two people remaining on the list, and in particular in circumstances where there was no order of merit for that list. The advice was that they could proceed and so there was an allocation of promotions to those on the list in four batches between October and the 8th of December 2021. The allocation of Inspectors was on the basis of vacancies which were critical to be filled. Asked who made the decision as to the allocation of individuals to vacancies, the witness stated that it was the Deputy Commissioner. It was decided that from the 2020 allocation, there was to be one per division and two for Donegal. The additional post in Donegal was based on a requirement to fill vacancies for border and Brexit work. At that time, the operational mode in place was not applied to Donegal. A need was identified based on the volume of work and meetings. There was a similar situation in Rosslare at the time due to Brexit.

Moving on to the Complainant’s case and the accommodation, the witness’s understanding was that the CMO was relying on the reports that he had and would not see everyone personally unless there was a change in their report and that he would rely on the GP or consultant reports unless additional information became available in which case there would be a personal review seeking further information. Asked about the chief superintendent’s influence on a decision regarding a reasonable accommodation of a disability, the witness stated that person would not have an influence; that they would seek the advice of the CMO; that they would advise whether they could provide the accommodation required, for example, if a person had an injury on duty.

The witness was asked about Mr X, former solicitor for the Complainant, and his contacts with that representative. The witness stated that he had dealt with that solicitor previously and held a number of telephone calls with him in September 2021 about this matter. Correspondence followed from some of those discussions. The nature of the discussion was that the witness was saying that the Complainant could be accommodated in Letterkenny and that once he took up the post, he could seek a transfer back; that this was the convention; there was no appeal process as such; and it was his understanding that the accommodation needs had been met. At that point even after the new allocation of ninety-two to the role of Inspector there were forty-four vacancies which could not be filled, and he spoke to the solicitor about a new competition being required in six to seven months and that after three to six months an application for a transfer could be considered provided that there was a vacancy and a backfill available. The solicitor advised that his client would not be transferring to Letterkenny and at that stage then they got into the piece about reversion to the grade of Sergeant. It was put it to the witness that statements made in the submission on behalf of the Complainant that he had provided false and misleading information as a matter of fact was not correct. There followed a consideration of certain related paragraphs within the Respondent’s submission and following a review the Respondent accepted that the language used was incorrect and amended their submission between paragraphs 20 and 27 of their submissions. By implication it was also accepted at this point that the Complainant’s evidence was correct in that he would not have been aware that he was on a panel and potentially that he could be promoted after 2017 until he was notified in 2020, and this in turn relates to the questioning of the Complainant as to knowing that there was a potential that he would be transferred on promotion and that he had not informed the management of his disability or that he was not available for transfer.

Under further examination the witness agreed that each applicant for promotion was required to provide their Eircode number and this was used in terms of looking at where they were living to ensure that they were not assigned too close to home. Asked why if the majority of those promoted on Bulletin 823 were assigned to locations nearer to their homes than the Complainant, the witness stated that he had reviewed the file and the Complainant and one other person were nearest to Donegal geographically. That other person was in Carrick-on-Shannon and was assigned to Donegal on promotion. One vacancy in Mayo was filled and that was not filled by anybody in Mayo, a Galway person was assigned there. Nobody from Mayo was assigned to the vacancy in Mayo. Asked how a person could seek to go to a different location than the one assigned, the witness said there is no process for applying for an alternative assignment. Under the current regulations there is no appeal process for a location unless there is a medical condition, which may apply in all the circumstances.

Regarding the role of C/Super. McGinn in the meeting on 22nd July 2021 the witness stated that he was not present at the meeting. That her role however was to accommodate the needs identified by the CMO. Asked who made the decision that following the meeting of the 22nd of July 2021 that the assignment of the Complainant to Letterkenny was to proceed, the witness stated that it was the Acting Executive Director of HR at the time, a Mr Joe Nugent. His recollection is that he received notification from Mr Nugent that the transfer was to proceed, and he acted upon that notification noting that it probably was not received by him until September 2021. He clarified that Mr Nugent was the most senior HR person in the organisation at the time.

Questioned about his evidence in a previous case, ADJ-00030391, the witness stated that the person in that case had not been promoted and the promotion was not signed off by the Assistant Commissioner. He confirmed in evidence that the person in that case had been promoted since that decision.

There was some discussion about the memorandum of 11th November and the question asked on behalf of the Commissioner by Padraig Mullarkey as to “Can the member be accommodated locally in the rank of Inspector”, and the witness stated that as far as he was concerned, the issue was about reversion to rank at that point because this was such an unusual step. The answer provided through HRM did include a reference to a precedent. However, his view was that the decision had been made at that stage and this was a question being asked and looking for advice and clarifying whether there was in fact a vacancy at the time. The witness confirmed that it was his understanding that the accommodations required for the medical condition had been met and it was on this basis that the decision regarding Donegal proceeded following on the direction of Mr Nugent at some point following the meeting of July 2021.

Asked about the issue of a vacancy or no vacancy in Mayo at the time, the witness stated that there was one in Mayo and two in Donegal. The vacancy in Mayo had been filled and there was still a vacancy in Donegal but once the Complainant did not take up that position but there was nobody left on the 2017 list who could be allocated to that position, and he believed that the vacancy in Donegal remained unfilled until sometime in 2022.

Time Limit Section 77

(5) (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.

The application of this section is the only consideration in respect of time limits.

From time to time, where a dispute arises concerned with compliance with the statutory  time limits, the issue is such a discrete point that it can be determined without the stress and cost of a full hearing running over days. In this case however the contentions around the time limit were so inextricably linked by the Complainant to the decision making within Garda management and their handling of the promotion and reversion of that promotion  allied to the decisions around the accommodation to be provided,  that it was essential to hear all of the available oral evidence on these aspects and to consider the relevant documents associated with that evidence provided in support of the written submissions in order to determine the preliminary issue.

Neither side provided a document or record of a telephone call which demonstrated on which date the Complainant was notified of the Decision of the Commissioner on November 19  to allow his reversion to the rank of Sergeant. I have therefore decided to accept the evidence of the Complainant, that he was not informed of the written decision of November 19th until at least one day later i.e., on or after November 20th. The significance of this conclusion is, that were it to be established that the Complainant was notified of the decision of the Commissioner on November 19th, then the referral of the complaint to the WRC on April 19th would be ‘out of time’ by one day for the purposes of the initial six-month time limit under section 77(5)(a), in which case an extension on ‘reasonable grounds ’would be required by the Complainant.

The proposition put on behalf of the Complainant to the effect that the time limit for the purposes of Section 77 commenced no earlier than November 20th, 2021, is based, in legal terms, on the proposition that there were two decisions of a discriminatory nature based on the same set of circumstances, amounting to a continuum of discrimination. This hypothesis is based to a large extent on documents sourced by the Complainant in subsequent requests to the Respondent for disclosure of information. There are three relevant documents: 26 October 2021 from the Commissioner’s Office and responses to those inquiries from relevant line managers on November 4th and 17th respectively. The Complainant also made a further plea on November 3rd of the earlier decision notified by way of a circular in August 2021 and confirmed by Chief Superintendent Ferry on two dates in September 2021. A response to that correspondence was issued in the name of C/Superintendent Ferry on November 4th.

On balance and having considered all of the arguments and evidence, the correct conclusion to be drawn from the facts, is that the Decision on the request for a reasonable accommodation on medical grounds was the one notified to the Complainant by way of the Bulletin of August 27th confirmed on September 10th by C/Superintendent Ferry and reaffirmed by him on September 14th, 2021. Allied to this conclusion is a further one, that the formal  process from September 28th  to November 19th, 2021, was a process to consider an unprecedented request to reverse a promotion and not a continuation of a process of deciding on the claim for a reasonable accommodation on medical grounds. In arriving at both of these conclusions I am relying to a considerable extent on both the correspondence and oral evidence of C/Superintendent Ferry, noting that the Respondent relied heavily on him as a witness and failed to provide a single decision maker to give evidence, including medical evidence, on any day of the hearing. To this day neither the Complainant representative not  I have received a clear answer as to who was the decision maker in July 2021-and who gave the direction to prepare and issue the Bulletin on 27 August 2021. Indeed, it is not known why the Complainant first  learned about the bulletin through a colleague not having had any engagement with management or the CMO on the matter for months at that stage. Correspondence provided which shows the Acting Director of HRM confirming the decision to assign to Letterkenny in September 2021 -is post the decision which led to the bulletin in August and therefore provides no enlightenment as to who took or was authorised to take the decisions on behalf of the Respondent in July and August 2021. The complete lack of transparency around these issues was noted by the Complainant representative at the conclusion of the hearing, understandably. That ambiguity in itself however does not alter the facts and law to be taken into account on the matter of the time limit under Section 77.

Moving on to the available evidence and information, on 10 September C/Super Ferry, responding to correspondence of 3 September 2021, made it crystal clear to the Complainants solicitor that the matter of the deferred assignment to Letterkenny was reviewed and a decision taken that the original assignment was to proceed. In confirming the decision notified in late August, C/Super Ferry made it clear that correspondence of September 3rd appealing the outcome of the review was considered and the decision to allocate the Complainant to Letterkenny remained in place.

Allowing for an exercise in how not to inform and communicate with an employee on such a serious matter as a request for a reasonable accommodation(with particular emphasis on the medical review aspect) prior to involvement of C/Super Ferry, if there was any doubt at all regarding the rejection of the accommodation sought by the Complainant, there could be no doubting the decision of the Respondent conveyed in the letter on 10 September and further reinforced by C/Superintendent Ferry on 14 September 2021 in response to further correspondence on behalf of the Complainant also on 10 September 2021.That letter on behalf of the Complainant raised not only issues surrounding the Complainants health, but also, surprisingly, in claim for a reasonable accommodation on health grounds, went on to implicitly criticise the C/Superintendent for the Donegal Division on historical grounds as being the reasons why the accommodations proposed ‘is of little comfort.’ There was the meeting with C/Super McMahon on September 13 in what I conclude was an unsuccessful  attempt to dissuade the Complainant from his course of declining his promotion, followed the next day of further confirmation that the Decision notified in on August 27th remained.

From the forgoing analysis, it follows that the Complainant was informed on three separate occasions between August 27th  and September 14th that the Respondent had decided the assignment to Letterkenny was to proceed and the last of these dates followed an appeal on behalf of the Complainant which included medical grounds for that appeal. Thereafter the engagement by the Complainant with the Respondent, and their decisions, were in consideration of his request to revert to the position not only of Sergeant but also to be located in Mayo. Nothing that the Complainant was told by the Respondent by either C/Super McMahon or Ferry or in correspondence indicated that the question of his accommodation on medical grounds was still an open question after August 27th, 2021. This conclusion is consistent with the evidence of C/Superintendent Ferry as to what was happening during that period-September to November 2021 i.e., consideration of the request to revert.

Both C/Supers tried to ‘advise’ the Complainant, in the loosest sense, against the decision to revert on the basis that it was very likely that a transfer back to Mayo would materialise within a relatively short period. These approaches are not consistent with a decision on the reasonable accommodation on grounds of disability being live and ongoing between September and November. The fact that the Complainant again issued correspondence on November 3rd to the Respondent on both the reasonable accommodation and the request to revert to Sergeant does not alter the fact that he was notified in August and again twice in September 2021 that his assignment to Letterkenny was to proceed. And account is taken of  the title and content of the response on behalf of C/Super Ferry to the letter of 3 November-the title was ‘Application to revert to Sergeant rank’ and the contents referred to ‘considering the application of Inspector Lynott-both wording related to the live issue-the request to revert.

The live issue during the period September 10th to November 20th as notified to the Complainant was not a different accommodation on medical grounds than that previously decided in July, but the process of reversion initiated by the Complainant. At the outside, I find that, while it could be argued the bulletin of 27th August is the date of notification of a rejection of the reasonable accommodation sought, the more reasonable date is September 14th when C/Super Ferry  confirmed for the second time the decision that the Complainant was to be assigned to Letterkenny, effective from that same day. The practical implementation of that decision was delayed for two reasons-one the Complainant was out sick from September 13th and secondly the insistence of the Respondent that certain regulations around reversion must be followed. The delays do not alter the fact that the accommodation on grounds of disability sought by the Complainant was rejected at a meeting in July, notified to him in a circuitous and in my view disrespectful  fashion in late August, but critically, affirmed to him on two separate dates in September 2021. That the Complainant chose to raise the matter of the accommodation again on November 3rd together with his request for a reversion makes no material difference to the fact that the decision on which his complaint is grounded was made internally the previous July, notified to him in August and again on two occasions in September and that the response he received on November 4th referenced only with his application to revert to Sergeant.

In effect what the Complainant seeks is that I regard the inquiries made by the Commissioner on the reversion and the availability of an ‘accommodation’ in Mayo, followed by his decision to revert the Complainant to the rank of Sergeant represent a second breach of Section 16 and an occurrence within the meaning of Section 77-a continuum of discrimination.  The finding sought by the Complainant is one which denies the context and the facts of the situation by that stage.  The evidence  does not provide grounds for a conclusion that the decision of the Commissioner on November 19th, 2021, can be construed as a last act or omission not to provide a reasonable accommodation within the meaning of the EEA and Section 16 in particular. Instead, I find  that the decision of the Commissioner on November 19th was concerned only with approving the request of the Complainant to revert to the rank of Sergeant following his own decision not to accept the assignment to Letterkenny with the accommodations of his disability offered by the Respondent.

I find that the most reasonable date for the purposes of the time limits in Section 77 5 (a) of the EEA, is September 14th, 2021. On the basis of this finding, the complaint submitted to the WRC on April 19th, 2022, is out of time for the purposes of Section 77 5(a) . The complaint is therefore, not well founded, as the complaint procedures required by Section 77 5(a) were not adhered to by the Complainant.

CA-00049754  The complaint by Derek Lynott against An Garda Siochana under the Employment Equality Act 1998 as amended, is not well founded.

Reasonable accommodation