Complainant

Respondent

Parties

Caoimhe  Gorrell

Jigsaw - The Centre Of Youth Mental Health

Representatives

Cillian McGowan

Joe O’Loughlin Adare Human Resource Management

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-00056469-001

03/05/2023

The complainant submits that she was discriminated against by the failure of the respondent to provide reasonable accommodation for her dyslexia disability.

Preliminary Issue #1:

It was submitted that the correct name of the respondent should be amended and there were no objections.

Preliminary Issue #2:

It was submitted in response to the respondent’s request for anonymisation of the decision that the respondent had not met the requirements of special circumstances and that it should not be anonymised.

Substantive:

It was submitted that the complainant is a bright, enthusiastic, and driven twenty-five-year-old woman who received her diagnosis of Dyslexia in the final semester of her four-year Bachelor of Arts (Honours) Social Care Practice and successfully gained a Bachelor of Arts Honours degree.  She commenced employment on the 31/08/2022 under a 12-month Specified Purpose Contract, as a Youth & Community Engagement Worker. There was a probationary period of 6 months provided for within this contract, which allowed for the probationary period to be extended to a maximum period of 10 months.  The complainant’s employment ended on 03/03/2023.  Her comparator was Ms Aoife Walsh who had a different experience than the complainant with regards to her disability and whom it was submitted was accommodated reasonably.

On commencement of her employment with the Respondent, the Complainant completed an online Health Questionnaire where she disclosed that she had both Dyslexia and Dyscalculia which she described as mild and that they did not define her.  For the complainant it has significantly affected her working memory, which would interfere with all her performance. On reviewing her Health Questionnaire, Ms. A from HR enquired as to what supports she would require and the complainant requested that the Grammarly app which automatically corrects grammar and spellings would be provided by the Respondent. There is no charge for this app.  The Respondent promised “We will have Grammarly downloaded onto your laptop when you start”.  The Respondent failed to implement the requested reasonable accommodations for her disability, i.e., Dyslexia and the complainant was therefore discriminated against by the Respondent during her employment with the Respondent.  The Complainant was not authorised to download software onto her work laptop herself as per Organisational Policy, and any request for software must be approved of by management and then downloaded by the IT department. This still not been supplied by the time of her mid-probation meeting with her service manager on 24/11/22, which was three months after she had first asked for it.  She requested it again during that meeting and it was subsequently provided. The responsibility to provide this software was the Respondent’s, not the complainants.

The complainant also asked, by way of reasonable accommodation, that meetings would be minuted, on 13/02/2023 by highlighting that

“sometimes my dyslexia makes it difficult for me to process information verbally”

and also outlying :

“I may interpret something completely different from what was asked of me especially if the communication is not clear…you can imagine how stressful this is for any person whether they have dyslexia or not”.

She referred to examples of how this might be done and with decided-upon actions clearly stated and shared, and the minutes agreed at the start of the next meeting which is essential for those with dyslexia. The reason for asking this was so that she would clearly understand the content and outcomes of meetings and discussions, so that there would be no ambiguity as to what was being asked. There were no cost implications of this request. She even offered to take the minutes herself and circulate them which are in an email dated 09/02/2023.  She showed her service manager an example of the clear communication that she was requesting from him which was sent as a follow-up to a meeting they had just had, and the email stated the meeting actions clearly. The complainant had this in previous employments, wherein the complainant worked perfectly well, enjoyed good communications, met expectations, and delivered actions. This simple and very reasonable request was not met. The complainant worked under Service Manager, Mr. Damien Coyle for six months, and experienced difficult communications from him throughout this time, as noted in her mid-probation report.  He did not agree to meeting this simple request until, as it seems, he had already decided to terminate her employment, telling her by email dated 17/2/23 that he would put her suggestions into place and found the discussion “very open and helpful”, but terminating her employment 5 days later instead.

On 22/02/2023 the Complainant emailed Mr Coyle asking him to tell her what the performance concerns that he had mentioned to her in an email on 21/02/2023 were and he did not answer that question any time before the 24/2/23 meeting in which he sacked her. In fact, he did not provide her with this answer until he sent an email containing the End of Probation Form and the Probation outcome letter 6 hours after he had sacked her, and 2 hours after close of business on the day he sacked her.  His reply on 23/2/23 stated “Further detail can and will be shared and outlined at our meeting on Friday”.  This lack of clear communication was further direct discrimination against a person with dyslexia, being a person who has a particular need for clear communication.

The Respondent did not give the End of Probation Review Form to the Complainant at least 48 hours before the meeting, as is required by their own policy and instead it was sent 10 hours before the meeting with Respondents section completely blank, and no notice of what was going to be said by the Respondent. Furthermore, this was sent at a time close to the end of the working day, and this absence of information was also direct discrimination against a person with Dyslexia, being a person who had a particular need for clear communication as well as sufficient time to complete a document, especially one as important as this one.

The Complainant understood that a 24/02/23 meeting with her service manager was going to be about formalising an extension of her probationary contract and per the communication on the 13/02/23 regarding the meeting on 24/02/23 but instead within 10 minutes of commencement of the meeting the complainant had summarily been dismissed without notice.  After the Respondent terminated the complainant’s employment she brought forward her travel plans because she felt it was her only option as she no longer had a job and felt so mistreated. She had made inquiries regarding working in the respondent’s partner organisations in Australia and asked about the process she would need to follow once her contract with the Respondent had finished.  It is the complainant’s belief that the Respondent is trying to mislead the WRC in referring to her move to Australia which was always her plan.  It was submitted that the complainant felt at rock bottom, that her self-confidence had been destroyed and she was so distraught with the way she was treated and, after having suffered a panic attack in the Respondent’s premises after the 24/2/23 meeting, that she was prescribed anti-anxiety medication. During this panic attack an employee of the Respondent asked the Respondent to give her some space because she observed the onset of the complainant’s panic attack. The meeting ended and the complainant reached out for support amongst her network, and no-one in the Mental Health Services building had at that stage come to her aid.

It was submitted that the Respondent failed to provide reasonable accommodations on multiple occasions for her disability, Dyslexia and if these simple measures of reasonable accommodations were met and a fair probation procedure took place that she would have successfully passed the probation period and her employment would not have been terminated.  The complainant submits that the respondent was on notice of the disability, there was no cost, inconvenience or burden imposed on the Respondent and there is a mandatory obligation on the Respondent to provide the reasonable accommodations sought by the Complainant. Despite her repeatedly requesting reasonable accommodation for her Dyslexia, it was never effectively acted upon, and this constitutes discrimination because failure to provide her with it had a greater impact on her than it would have had on another person in the same position who did not have Dyslexia.

The Complainant did have the capability to carry out the duties assigned to her and is qualified and experienced and disputes that she needed more support than reasonably required as the only support provided was the software Grammarly, and not before she had requested it several times over a three-month period. The complainant’s manager made reference to the complainant’s performance at a workshop and unfortunately at that workshop the supervisory school staff did not attend and the complainant found that a lot of her time during this workshop had to be directed to a challenging attendee and rather than  giving his employee the support that she needed, her supervisor sat back, took notes of her performance, and subsequently used his observations to de-mark her in her probation review.  The complainant refutes that the Respondent is a caring employer and they did not make all reasonable efforts to accommodate the disability seen in mid and end of probation review forms respectively.  This end of probation report was traumatising for the Complainant to read, some of its contents is out of context, others exaggerated, and others were blatant lies.

Case law cited includes Swan O'Sullivan v`. Counihan EDA10/2018, A Senior Nurse v. A Health Service Provider (ADJ-00014052)

The evidence of the complainant was that she was a project worker and did workshops for secondary schools and that her manager was Damien Coyle.  She said in the early stages they had a good relationship and it was a lot to learn and there were weekly meetings and it was never outlined who would do the minutes of these meetings and there were no agreed action and no written minutes.  She said as the role intensified; she needed things written down as her manager would say she did not do things right.  She said she uses Grammarly and also said it to her manager and he seemed shocked and then it was put on the laptop.  She said she was asked to produce a status report by 06/01/2023 and when she gave it to him on 13/01/2023 he was not happy and he said actions plans needed to be included and the complainant told him she would fix it.  She said he was to observe her as a facilitator and of the 12 workshops she completed he attended one.  She said she felt increased stress to meet new standards and never implemented writing things down and in February 2023 she said she requested reasonable accommodation and that she got no reasonable support for her dyslexia and then she was invited to a meeting and advised that she could have someone with her and he fired her and no reasons given until 6 hours later.  She said it was the most horrible experience and that she had been working hard and achieving objectives.  She said he told her she was the first one he worked with who had dyslexia and that weekly minutes should have been done and he should have gone through action plans.

On cross examination the complainant confirmed that she advised on her health form that her dyslexia is mild and that she did not provide the psychologists report to the respondent and that the psychologist report refers to her dyslexia as more serious than mild.  She said she did not download Grammarly as she thought it would be provided and that she could not just download it to her computer as per the company’s policy.  She denied that she was muddying the waters with performance and probation.  She said she expected her manager to record the minutes and that she asked him to supply the minutes.  She said she had considered emigrating to Australia and that when she was dismissed that sped up the process.  She confirmed that she considered moving to Australia prior to taking up employment with the respondent.  She said she became aware of appeals process after the meeting where she was dismissed.  She said that she requested reasonable accommodation on 13/02/2023 and made a follow up request on 17/02/2023 and her employment was terminated on 24/02/2023.  She said she was told by Mr Coyle that he would provide support but he did not.

Evidence of Ms Aoife Walsh

She said she is a Youth & Community Worker since April 2022 and has an ongoing back issue and she brought it to the attention of the service manager and an ergonometric assessment was sorted within a few months.  She said what she requested was provided and the respondent was very accommodating and had weekly contact with her manager and there was a shared document online that both recorded the outcomes of her 3-week meeting.  She said that this document had been initiated by her manager and that the weekly contact meeting was not recorded and that her role was the same as the complainant’s.  Under cross examination she said she was on probation for 3 months.

Preliminary Issue #1:

It was submitted that the correct name of the respondent was to be amended and there were no objections.

Preliminary Issue #2:

It was submitted that the decision should be anonymised owing to the spurious allegations that had been made and the potential reputational damage of the respondent.

Substantive Issue:

The respondent is an organisation committed to transformation of youth mental health.   The complainant commenced employment with the Respondent on 31/08/2022 under a 12-month Specified Purpose Contract, as a Youth & Community Engagement Worker.  There was a probationary period of 6 months provided for within this contract, which allowed for the probationary period to be extended to a maximum period of ' 10 month.  A detailed job description for the role was given to the Complainant.  On commencement of her employment with the Respondent, the Complainant completed a Health Questionnaire where she disclosed that she had both Dyslexia and Dyscalculia which she herself described as mild and that they did not define her. She also ticked the box that she did not require any special accommodation for her disability. On reviewing her Health Questionnaire, Ms. A, HR Business Partner for the Respondent, contacted the Complainant by email to see what supports she required.  By return email on the same date, the Complainant, replied that she did not require any assistance, and would like to download Grammarly onto her work laptop. Grammarly is a free app to help with spelling and grammar.  The complainant could have downloaded it herself at any time and during her lT setup and never mentioned her need for the App. The Respondent was unaware that she had not done so until her mid-probation review and immediately rectified the issue and Grammarly was downloaded for her and her Line Manager Mr. Damien Coyle was aware of her Dyslexia and had adjusted his expectations of her performance from the commencement of her employment to take account of her dyslexia.

It was submitted that the Complainant would appear to be attempting to expand the definition of Dyslexia to include difficulty in understanding verbal communications.  The Complainant, herself has laid much emphasis on the fact that her dyslexia was mild and was not diagnosed until the final year of her 4-year degree. The Respondent flatly refutes the Complainant's statement that Mr. Coyle ever mentioned that the Complainant was the first person he had ever worked with who had the condition. As a statement of fact, there was another employee with dyslexia working for the Respondent at the same time as the Complainant. The Respondent can demonstrate the lengths that Mr. Coyle went to support the Complainant. There were no issues identified regarding her dyslexia, rather issues emerged quite early on in her employment which related to her competence when compared to the duties required to carry out her role.  It was submitted that the Complainant in this case did not submit that she was treated less favourably than another person who is not a person with a disability or a person with a different disability..

The Complainant failed to establish or pre-offer any evidence that she was discriminated against by the Respondent on the grounds of her disability and merely listed her speculations or assertions that she believed that she was treated less favourably than others with no supporting evidence. The Respondent did not seek to have any medical evidence supplied to it by the Complainant's medical practitioner, rather it accepted, in the utmost good faith, that she has indeed, a disability, Dyslexia and made all reasonable efforts to accommodate this disability. Every request for special accommodation on the grounds of her disability was met with a willingness on behalf on the Complainants line manager, despite this placing a disproportionate burden on his time. It was submitted that the Respondent's decision to terminate the Complainant's employment was reasonable and proportionate in the circumstances and the complainant was afforded opportunities to correct her performance and there were numerous conversations surrounding her performance in her role and there was no real prospect, based on evidence, that the Complainants performance would improve.

The Complaint listed most recent date of discrimination as the 24/02/2O23, i.e., the date on which she was dismissed by the respondent. However, she did not provide any details of the alleged discriminatory act, or action on this date, save to mention this as the most recent date on which she alleges discrimination. It is common cause that the Complainant's employment with the Respondent was terminated on the 24/02/2023, however all of the Complainant's accounts of event of that day are disputed/denied by the Respondent. The Complainant was supported online after the meeting and was not observed to be suffering from "a panic attack" as claimed, rather, she insisted on remaining in the building after being told that there was no requirement for her to remain at work for the remainder of the day. The Complainant was paid her contractual notice, which in effect, had her employment end date as the 03/03/2023. The termination of employment was a direct consequence of the Complainant's inability to perform her role, even with all of the supports and reasonable accommodation the Respondent afforded her.

The Respondent categorically denies any form of discrimination against the Complainant on the grounds of her disability and contends that based on the evidence that every reasonable and proactive accommodation was always afforded to the Compliant. The Respondent maintains that there was no discriminatory treatment of the Complainant on the grounds of disability or otherwise. For the Complainant to suggest otherwise is a concern for the Respondent as an employer with a reputation to uphold that such a claim is disingenuous. The complainant failed to demonstrate anything other than her own lack of capability to carry out the requirements of her role. lt is the responsibility of the Complainant to prove otherwise and taking account of all the foregoing, and the lack of evidence of discriminatory treatment as alleged by the Complaint, the Respondent submits that the Complaint's case is not well founded.

The Respondent further contents that a normal management process wherein allowances had already been made for the Complainant's disability does not amount to discriminatory treatment of any kind and as set out in case law organisations have the right to manage performance. ln this case the Respondent made adequate allowances for the Complainant's disability. Her performance slipped to such a point where a disproportionate amount of time was spent on checking her mistakes, re-doing her work and the Service Manager, had to intervene, take on a substantial part of the Complainant's workload leaving him under a disproportionate workload. It is the Respondent's case that the Complainant did not, as she suggests, pass her mid probation review, but in fact, the areas that she needed to improve were well articulated and documented to her. The Complainant did not reach the required standard, even considering her disability her performance was not of a standard required to carry out her role which left the Respondent no option other than fail the Complainant's probation.

The respondent submitted the complainant had not established a prima facie case of discrimination and that she was on probation which can by its nature lead to termination.  She was in receipt of her staff handbook and did not appeal.  She failed to achieve the minimum standards that resulted in her termination of employment.  It was submitted that the complainant did not utilise any of the Respondent's internal, formal or informal mechanisms to resolve any issues that may have arisen during her employment including the grievance procedure with the Respondent or appeal her termination.  It was denied that the complainant had been forced to emigrate to Australia as a result of the actions of the respondent as she had made the respondent aware of her intention to emigrate to Australia, from the beginning of her employment. The respondent submitted that despite all reasonable accommodations being afforded, the Complainant simply did not have the capability to carry out the duties assigned to her, in circumstances where she received more support than was reasonable required to take her disability into account. The Respondent at all times tried to facilitate the job of the Complainant to the point where it became a disproportionate burden and impacted on the Respondent's ability to achieve its own goals and targets.

Evidence of Mr Damien Coyle

Mr Damien Coyle gave evidence that his role is a service manage and manages a team and never had a complaint against him.  He said the key focus of induction for the complainant was around schools.  He said she was doing well in some areas at the time of the mid probation.  He said he was trying to secure a positive outcome for her in December and normally there would be one meeting in six but she needed more regular meetings and the first few weeks of January there were some concerns and they were brought to the complainant’s attention.  He said she required more time and more facilitation and he consulted with HR.  He said there was a balance in seeing where she was and reducing his expectations.  He said in addition to meetings every six weeks there had to be other meetings and he was aware that she had a disability.  He said he asked if she needed anything regarding her disability and she said she was covered and that he offered her a number of supports including line management support and coaching and regular reviews.  The complainant had told her about Grammarly and that was put on her computer.  He said no ergonomic assessment was carried out and he was supporting another employee with dyslexia and this other employee is a high performing employee.  Mr Coyle said that support given included coaching, regular reviews, agreement in place, support plans and flexible work.

Under cross examination he said the three reasons for dismissal was planning, receiving feedback and communication and that often the complainant would shut down during feedback and take lots of notes and not make eye contact.  He said after the meeting of 13/02/2023 the complainant seemed to appreciate what Mr Coyle had done for her.  He said he agreed to how she wanted to be communicated to but she was judged on her ability to do her role and she was told on 21/02/2023 about a meeting on 24/02/2023 and that it referred to probation review and she would have had access to a probationary review form and this probation review meeting would have been in her calendar for some time.  He said she would have had access to the probationary review form on 23/02/2023.  He confirmed that she asked for information to be put in an email but that he did not see himself as the problem and said that he believed reasonable accommodation was in place such as Grammarly and that she never said that Grammarly was not in place.  He did not think this was impacting on her mental health and the purpose of the respondent is to help people up to aged 25 with mental health.  He said he believed her request for minuted meetings was going beyond reasonable accommodation.  He accepted it was good business practice to minute meetings and that she did not appeal and he agreed that the dismissal did not mention an opportunity for appeal and that she had an opportunity to appeal as she was in contact with the respondent.  He said a week before the meeting with the complainant there had been discussions with HR around the 09/02/2023 and that on 17/02/2023 he had met with the complainant but did not mention it till the 24/02/2023 that her employment was going to be terminated.    He did not accept that she was ambushed and that she was underperforming.  He said that he thought she knew there were performance issue and could not answer as to whether she knew that her employment was going to end.  He said she would have known on 17/01/2023 that she was warned as by granting an extension it was obviously a warning and on 08/02 /2023 she was told that her performance would be further assessed and there was a meeting on 17/02/203 where performance concerns were referred to and then on 21/02/2023 the email invite said she could bring someone with her and on 24/02/2023 her employment was terminated.  He said in total that there were 4 people involved in the decision to terminate her employment including himself, Ms A, Mr B also in HR and Ms C a regional manager.  Mr Coyle’s evidence was that by giving an extension to her probation on 17/01/2023 it was warning her that she was not performing and then on 08/02/2023 he told her that he had to further assess her performance and then on 17/02/2023 performance concerns were referred to and then on 21/02/2023 the email says that she can bring someone to the meeting of 24/02/2023.

Case law cited include Adj 28731 Christopher McDermott v NQA North Quay Association, Ross McMorrow v Institute of Technology Sligo Adj 29576, Adj35968 A Covid19 Swabber v A Covid 19 Testing Company, Nano Nagle V Daly (2O19), The Southern Health Board v Dr Teresa Mitchell, Elephant Haulage Ltd v Garbacevs, Berber -v- Dunnes Stores 2009 ELR51, UD1350/2014 M. Reid -v- Oracle EMEA,Margot Conway V Ulster Bank (1981)

Preliminary Issue #1

It was submitted that the correct name of the respondent was Jigsaw - The Centre Of Youth Mental Health and there was no objection to amending the respondent’s name and I note that parties were not prejudiced by the change in name and accordingly amend the name of the respondent.

Preliminary Issue #2

The respondent requested that the parties names be anonymised.  Section 11 of The Workplace Relations (Miscellaneous Provisions) Act 2021, amended section 79 of the Employment Equality Act 1998, by the substitution of the following subsection for subsection (2):

79 (2) An investigation under this section shall be held in public unless the Director General of the Workplace Relations Commission, of his or her own motion or upon the application by or on behalf of any party, determines that, due to the existence of special circumstances, the investigation (or part thereof) should be held otherwise than in public.

I have considered same and I further take into consideration Chief Justice O’Donnell in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24:

“The rule established under the Constitution is not an absolute one, even for court proceedings, and is not expressly required under Article 37 in respect of the adjudicative processes covered by it. There is a justification for calm, quiet, and private resolution of many disputes which may be of particular sensitivity for the participants, and it may even be permissible to have a presumption in favour of private hearings at first instance, but it is not, in my view, possible to justify the absolute ban contained in s. 41(13), particularly when, on appeal, the opposite provision is made.”

Taking into consideration all the circumstances and submissions, I do not consider the circumstances put forward by the respondent to be special circumstances and advised parties that this decision would not be anonymised and would not be held in private and the hearing, therefore, proceeded in public.

Substantive:

The complainant submits that she was discriminated against by the respondent by their failure to provide reasonable accommodation and provided a comparator who had a disability and this comparator had been given reasonable accommodation.  The respondent submits that the complainant did not pass her probation and her employment was terminated accordingly and that she was not discriminated against by failures to provide reasonable accommodation and that reasonable accommodation was provided.

6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, o

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

(2) 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 16 sets out that

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

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

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

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

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.

(4) In subsection (3)—

‘appropriate measures’, in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility, or thing that the person might ordinarily or reasonably provide for himself or herself.

It is set out in Section 85A(1) of the Act that the burden of proof rests with the Complainant who alleges discriminatory treatment contrary to the Act:

“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.”

and within the Labour Court decision Southern Health Board v Mitchell [2001] ELR 201, the evidential burden imposed on a Complainant was considered by section 85A and held:

“The first requirement is 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 complainant 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 is no infringement of the principle of equal treatment.”

In Cork City Council v McCarthy EDA 21/2008 it was outlined that:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

and in Melbury Developments Ltd v Valpeters [2010] ELR 64, that:

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

It was not disputed that the complainant had a disability of dyslexia for this instant complaint, and that the respondent was on notice of this in advance of her commencing employment.  It was not in dispute that the complainant requested a software app to provide assistance to her because of her disability and that the respondent did not provide this despite advising that they would.  It was not in dispute that the complainant did not provide a copy of her psychologist report at any stage to the respondent nor was it requested from her.  I note the contents of the complainant’s mid review probation assessment, completed after 3 months and although the respondent submits that she did not pass this, it is not clear from the content of the assessment whether it was a pass or fail.  It was not in dispute that the complainant was advised on 13/01/2023 that her probation would be extended and this appears to have been immediately after delivering a workshop that her supervisor attended.

It was also not in dispute that the complainant was advised her probation would be extended to May 2023 and that on 13/02/2023 the complainant highlighted her dyslexia, gave examples of the method of communication that would aid her disability, highlighted that she was completing a dyslexia course and gave details of a similar type of course that might be useful for her manager to understand dyslexia.   The manager appears to acknowledge receipt of this email on 17/02/2023 and refers to it as “very open and helpful” but does not directly acknowledge her disability and while he outlines how actions might be captured in the future, he does not refer mention specifically that this is in acknowledgement of her requests because of what she claims are her disability.

Much was made by the complainant that the respondent failed to provide her with the software app to support her disability and while I accept that it may have been in breach of procedures for the complainant to download this app herself, the complainant failed to follow up on this request which might have been expected of her in such circumstances where it appears that the respondent simply overlooked her request.  It does, however, appear extraordinary that the respondent advised that probation would be extended to May 2023 and yet when the complainant highlighted assistance she needed on 13/02/2023 including outlining “sometimes my dyslexia make it difficult for me to process information verbally”, the respondent failed to respond specifically to her requests.  The complainant explicitly mentions her disability and it appears to be even more extraordinary that the respondent who had advised her that probation was extended to May 2023 then advises her that he is scheduling another meeting and then terminates her employment.  I find that the complainant has therefore established a prima facie case of discrimination.

Mr Coyle appeared to struggle in his evidence in explaining what specifically had changed between 13/01/2023 and 24/02/2023 such that he no longer deemed it appropriate to extend probation and terminated the complainant’s employment.  It would appear, therefore, that the only change that had occurred was the complainant’s explicit requests for accommodation because of her dyslexia.   Mr Coyle’s response to this in evidence was that he did not see himself as the problem and that the changes needed to be made did not need to come from him.  It may well have been that Mr Coyle regarded the accommodations that Ms Gormley was seeking were unreasonable, disproportionate, or unduly burdensome, which it should be noted I do not find that was the case.  It may also have been the case that that the complainant’s requests might not have positively impacted what Mr Coyle saw as her failures in performance but he did not appear to make any informed decision regarding what appeared to be, in all the circumstances, reasonable accommodations owing to her disability. 

It should also be highlighted as highly commendable that the complainant outlined steps she was taking to learn ways to support and better understand her disability of dyslexia by reaching out to Dyslexia Ireland as well as offering details of support that her manager might utilise especially considering that the purpose of the respondent is to support young people in the area of mental health issues.  However, instead of engaging with this, Mr Coyle’s evidence was that he sought advice from at least 3 others including HR but no medical advice or further inquiries with the complainant seemed to have been sought regarding the complainant’s specific requests for accommodation based on her disability that the respondent was on notice of before he made a decision to terminate the complainant’s employment.  

The Labour Court outlined in EDA2227Health Services Executive v Ms Marie O’Shea that

 “section 16 of the Act was the subject of far-reaching judicial analysis by the Supreme Court in Nano Nagle v Marie Daly [2019] 30 ELR 221.” 

In Nano Nagle School v Daly [2019 IESC 63 it was established that employers are obliged to consider all appropriate measures which could be undertaken to provide reasonable accommodation and to demonstrate, if no such measures were taken, that this was only because those measures would be disproportionate or unduly burdensome.  In all the circumstances of this instant case it is difficult to see how the accommodations requested were in anyway disproportionate or unduly burdensome or why the measures requested could not be further explored.  The complainant had a disability and requested reasonable accommodation and has established a prima facie case of discrimination and the burden of proof shifts to the respondent and they have not met this burden.

I find that the Complainant was discriminated against on grounds of disability, in relation to the failures of the respondent to provide reasonable accommodation and taking into consideration the circumstances of the instant complaint including the impact on the complainant I make an award of €7,000 to the complainant.

I find that the Complainant was discriminated against on grounds of disability, in relation to the failures of the respondent to provide reasonable accommodation and taking into consideration the circumstances of the instant complaint including the impact on the complainant I make an award of €7,000 to the complainant.

Reasonable accommodation, dyslexia, equality, discrimination, probation