Complainant

Respondent

Parties

Thandekile  Sulo

Abbot Close Nursing Home Ltd

Complainant

Respondent

Anonymised Parties

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Liam O’Flaherty BL instructed by Purtill Woulfe Murphy Solicitors LLP

 Ms Deirdre Vaughan, Operations Manager

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-00062031-001

06/03/2024

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

CA-00062031-002

06/03/2024

The Complainant, a healthcare assistant, was represented at the hearing. Submissions were received in advance of the hearing and shared with the Respondent. The Complainant gave evidence under Affirmation.

It was the Complainant’s case that she was discriminated against on the grounds of disability in securing a job with the Respondent, in her conditions of employment, and in the Respondent's failure to reasonably accommodate her. She withdrew her complaint regarding other elements of discrimination at the hearing. Her second complaint was that she was dismissed for discriminatory reasons.

The Respondent, a nursing home provider, was represented by Ms Deirdre Vaughan, Operations Manager for the Respondent. Ms Camelia Pop, Director of Nursing, gave evidence under Affirmation. Ms Airida Downes, Quality and Safety Manager, also gave evidence under Affirmation.

The parties were given two opportunities, at the opening and closing of the hearing, to make submissions on whether to divert from the practice of holding hearings in public and naming the parties in the Decision. On both occasions, the Complainant confirmed that she was content to have the matter heard in public. The Respondent did not object to the complaint being heard in public.

The Complainant gave evidence that she is HIV positive. In 2023, she undertook a QQI course in Health Care Support (Pre-Nursing). As part of this course, she completed work experience with the Respondent, which began on 14 July 2023. Within days of starting her work experience, she was offered an interview for the role of Healthcare Assistant with the Respondent. The interview took place with Ms Pop, the then Assistant Director of Nursing, and Ms Downes, the then Director of Nursing, on 17 July 2023, and she was offered the job on the same day. It was her evidence that she presented her work permit and references at the interview.

The Complainant signed the contract of employment on 28 July 2023 and, in the meantime, continued with her work experience, completing onsite and online training as required by the Respondent.

She was required to complete a Medical Questionnaire, which she took to her GP to ensure it was completed correctly. The Complainant included the medications she was prescribed and submitted it to the Respondent on 1 August 2023. The Respondent requested a report from an “occupational health therapist.” The Complainant sought advice from the Respondent as to where she could find such a therapist and whether she needed an appointment, but no guidance was provided. While in Limerick, she attended UHL to seek an “occupational health therapist”, where she was informed that she would need a referral to get an appointment. The Complainant described feeling clueless as to what to do next or who to contact.

On 14 August 2023, the Complainant spoke with Ms Pop on the phone regarding an occupational health therapist. In an effort to progress matters, she contacted the Infectious Disease Unit where she was a patient. She phoned Ms Pop back on the same day to give her the feedback from the Nurse in Charge, advising her that she would give written consent for CUH to write to the Respondent with her medical details and ability to work.

On 21 August 2023, the Complainant again emailed Ms Pop, advising her that she followed up with the Unit, but it had not received her consent. No response was received.

On 22 August 2023, the Complainant again emailed the Respondent via the admin email address, advising that CUH had received her consent. She provided the names of three of her treating doctors in the Unit, along with the correct address. She stated that the doctors would provide “any nursing home needs about my HIV status”, signing off that she looked forward to hearing from the Respondent. In reply, the HR Administrator noted she would forward the email to Ms Pop.

On 23 August 2023, the Complainant wrote to the Respondent again, providing further contact details of the nurses in charge and their mobile numbers.

A report from the Complainant’s Consultant Physician was issued to the Respondent on or around 28 September 2023. The letter did not raise any concern with the Complainant’s ability to work with the Respondent and offered to provide any further information required.

It was the Complainant’s evidence that when she did not receive a response to her follow-up email of 18 September seeking an update on her employment, where her contract had commenced, she suggested that while the Respondent was awaiting her medical report, she would continue her work experience as she needed to complete her studies

On 2 October 2023, the Complainant attended the nursing home to report for work at 7:45 am. She met Ms Pop in the changing room as she was changing into her uniform. Ms Pop later sent another employee to ask the Complainant who she was and why she was there. The Complainant gave evidence that she went straight to Ms Pop, who said she had to leave the premises immediately. She asked if she could finish her work experience, but this was refused. The Complainant returned to the nursing home 30 minutes later and advised Ms Pop that she needed a letter if she was not going to be allowed to finish her work experience with the Respondent. She described Ms Pop going into Ms Downes’ office, and when she came out, she was told it would be posted to her.

On the same date, the Complainant wrote to the Respondent, stating that she was dismissed at 7:45 am by Ms Pop, and she requested a letter to allow her to continue her work experience elsewhere. No response was received.

She sent follow-up emails on 4 and 9 October 2023, but again there was no response from the Respondent. To date, she has not received the letter.

When the medical report was received from CUH, the Complainant did receive a phone call from the Respondent. She asked if she could return to work but was told she could not, as she still needed to see an “occupational health therapist”.

The Complainant again emailed Ms Pop on 25 October 2023, requesting a copy of the medical report, as she stated she would need it for the “occupational therapist”. She further requested a referral letter, as she had been in touch with UHL, who had requested the same.

By letter dated 19 December 2023, the Complainant, through her solicitor, sought further information pursuant to Section 76 of the Employment Equality Act 1998. No response was received.

No further communication was received from the Respondent.

The Complainant said she did not expect such treatment. It was her evidence that the completion of her work experience was delayed until she found an alternative nursing home in November 2023. In August 2024, she obtained employment.

It was put to the Complainant in cross-examination that she was asked for references and other documents required under the recruitment policy. The Complainant denied this, stating she was offered the job on the same day as the interview. She explained that she gave references to Aine in HR, along with her visa, work permit, and education results. She subsequently completed Fire and Safety training along with HSE training.

She was asked if she spoke with Ms Pop about her medical questionnaire and why the Respondent needed to follow up. It was the Complainant’s evidence that she sought assistance from her GP regarding the questionnaire. She did speak to Dana at the time, who advised that she had to see occupational health therapist because she was HIV positive.

It was put to her that the Respondent required her to attend Occupational Health due to her disability for recommendations in the workplace. In response, the Complainant said she unaware at the time as to how she could go to occupational health without a referral letter.

It was put to her that the Respondent had to ensure safety for both her and the patients. It was the Complainant’s evidence that she completed the medical questionnaire, had her immunisations, and consented to a medical report from CUH.

Asked who suggested she go to CUH, the Complainant said no one, it was her own suggestion. She was just asked for her consent.

Referring to the email of 21 August 2023, she noted it was Dana and not Ms Pop she spoke to. She was asked to attend Occupational Health Therapist when she advised she had been in contact with CUH.

The Complainant was asked when last she spoke to Ms Pop, she said she met her on 2 October and spoke to her on the phone on 25 October 2023. She was told by Ms. Pop that the report from CUH had been received and regardless of that report they needed her to attend an Occupational Health Therapist. She denied being asked for any other document. The Complainant did not believe Ms Pop mentioned public health.

Upon inquiry, the Complainant was asked what her understanding of an “occupational health therapist” was, to which she replied she was “clueless”.

Legal submissions were made on the questionnaire pursuant to Section 76 of the Employment Equality Acts and the Respondent’s failure to respond. In particular, the High Court judgment of n Iarnród Éireann v Mannion [2010] IEHC 326 and Equality Tribunal decision in Kennedy v ADCPlasticard Ltd DEC-E2010-019 were submitted in suppose of where no response was received adverse inferences should be drawn in such circumstances.

Ms Downes gave evidence as she was the Director of Nursing in 2023. It was her evidence that when the Complainant was offered the position of Health Care Assistant following her interview, she was told that she was required to provide references and other documents as per the Recruitment Policy.

Ms Downes explained that when she received the medical health questionnaire, advice was sought from the “medical health officer”, who in turn advised that there was no issue, but the Complainant would have to have monthly occupational health reports. She continued that, as the Respondent did not have in-house occupational health services, they had to seek further advice, which took several weeks. It was her evidence that it took the Respondent a few weeks to obtain the Complainant’s consent but added that the Respondent was very happy when they received the report from CUH. When she followed up with public health again, she was told that regardless of the CUH report, the Respondent had to obtain an external occupational health report.

It was Ms Downes’ evidence that, at the same time, the Respondent did not have the references from the Complainant. She added that there was also outstanding training. It was the role of the HR Administrator to follow up and gather the information in accordance with the Recruitment Policy.

Ms Downes described the communication as constant with the Complainant via phone and email.

Ms Downes accepted, during cross-examination, that the HR Administrator was not at the hearing to give evidence.

Asked if it was the Respondent’s usual practice to require an employee to obtain a monthly occupational health report at her own expense, Ms Downes responded that the Respondent had consulted public health, and this is what they were advised. She added that the Complainant said she would go to Limerick to try and obtain the report.

It was Ms Downes’ evidence that she never received the email from the Complainant seeking a referral letter for UHL, as there was a problem with her email account. When asked how the email was included in the Respondent’s submissions, Ms Downes stated that it was not sent to her email address, but to HR, and she was not aware of the email at the time.

Ms Downes was asked why the letter from CUH was not sufficient. In response, she again referred to the advice from public health.

It was put to Ms Downes that the Respondent provided no support to the Complainant in finding an “occupational health therapist”, providing a referral letter, or financial support to obtain a report. In reply, Ms Downes said that it was in the Respondent’s interest for the Complainant to commence work, as she had approached her for the interview. It was then suggested to Ms Downes that this may have been the case before she became aware that the Complainant was HIV positive, but once she found out about her disability, the Respondent’s attitude changed.

Ms Downes was asked for evidence that the references or training were not complied with, why the Complainant’s emails were left unanswered, and why there was no written reference to public health. It was Ms Downes’ evidence that she spoke to the Complainant on the phone regarding public health advice but could not explain why the emails were not responded to.

Upon inquiry, Ms Downes was asked about her understanding of an “occupational health therapist” and whether it was a doctor, rather than a therapist, that was meant. She confirmed that it was a doctor and stated that there was no in-house occupational health service, as the Respondent was in the private sector, unlike the public sector. Asked what options the Respondent had explored and whether she had considered any of the numerous dedicated occupational health clinics or even the local GP, it was her evidence that a GP would not suffice. She was further asked what the Respondent would do if an employee was suffering from back pain or any other disability. It was Ms Downes' evidence that the Respondent had previously sent an employee privately to occupational health in Limerick.

Ms Pop was the Assistant Director of Nursing at the time. She also gave evidence on the recruitment process and engagement with public health. It was her evidence that she did not recall speaking with the Complainant on 2 October 2023, nor did she ask her to leave the premises or refuse to give her a letter regarding her work reference. She stated that the medical questionnaire, references, and training were required for all new employees, as the Respondent was a care home that catered for vulnerable people.

It was put to Ms Pop in cross-examination that each new joiner was not required to identify an occupational health professional and obtain ongoing reports at their own expense. In response, Ms Pop said it was dependent on each person. She added that the Respondent was unsure who was going to pay for the reports. Ms Pop stated that the Respondent was trying to find a solution.

It was Ms Pop’s evidence that she was not aware of the Complainant’s emails.

Ms Pop denied being present when the Complainant signed the contract of employment but did accept that it was a valid contract. She added that, while the Complainant did sign a valid contract, she had not provided the references. It was put to her that the contract was neither conditional nor made any mention of references. Ms Pop stated that it was mentioned at the interview.

It was suggested to Ms Pop that the Complainant effectively remained an employee as no termination letter had been issued. Ms Pop replied that the Complainant had not commenced her contract.

Upon inquiry, Ms Pop was asked if there were any interview notes and advised that there were notes, but they were not presented at the hearing. There was also an email regarding training requirements. She advised that the Complainant had been contacted via phone regarding the outstanding information.

The Recruitment Policy was presented to Ms Pop, and she was asked to comment on section 11.4, where it states that no appointment will be finalised until satisfactory references have been received. She was also asked why, as the person responsible for the interview along with Ms Downes, she did not ensure this was completed before the Complainant was given a signed contract of employment. In response, Ms Pop said it was HR who were responsible for the references and the contract.

Ms Pop was asked why she did not allow the Complainant to continue her work experience during the period when the Respondent was attempting to determine the next steps regarding occupational health. Ms Pop responded that the Complainant had not completed her training.

Ms Pop denied meeting the Complainant in the changing room on 2 October 2023, stating instead that it was another employee, but she did tell the Complainant that she needed to present references, a work permit, follow the public health advice, and complete the training. When asked why she did not respond to the Complainant’s email of 2 October 2023 correcting her statement about being dismissed, Ms Pop stated that she did not receive that email but had never told the Complainant she could not continue her work experience

The email of 21 October 2023 was presented, and Ms Pop accepted that she had received it, but it was her colleague who had the phone call with the Complainant on 14 October 2023, as referred to in the email.

No submissions were made on behalf of the Respondent regarding why it did not respond to the Section 76 information request.

It was accepted that the Complainant had a disability for the purposes of the Act by the Respondent.

Employment Equality Acts 1998 - 2015

Section 6 of the Employment Equality Acts 1998-2015 (as amended) provides the definition of discrimination:

“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, or

(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.”

Section 16 (3) provides the nature and extend of the employer’s obligations to employees with a disability:

(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;”

Section 85A of the Employment Equality Act 1998-2015 sets out the burden of proof:

“(1) 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”.

Therefore, the burden of proof is on the Complainant to show that he was treated less favourably on account of his disability and was not reasonably accommodated in the workplace.

InSouthern Health Board v Mitchell (2001) E.L.R. 201, the Labour Court held:

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

Rotunda Hospital v. Gleeson, DDE003/2000 examined what is required to establish a prima facia case of discrimination;

“Evidence which, in the absence of contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred”.

The Labour Court in City Council v. McCarthy, EDA 21/2008, which was relied upon by the Respondent, held the Complainant must establish not only the primary facts on which she seeks to rely but also that those facts are of sufficient significance to raise an inference of discrimination

Section 6 (1) (a) of the Employment Equality Acts is drawn from the same wording as Art.2 of the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (“Framework Directive”). Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 note at para. 7-86, “his requires there to be a connection between the disability and the alleged discriminatory acts. This connection is not established by way of motive or intention to discriminate, but rather from the facts before the Tribunal from which it may infer discrimination.” Reliance is placed on the Labour Court determination in A Technology Company v A Worker EDA0714:

“a person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable that a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”

By way of background, it was undisputed that the Complainant began working as an unpaid work experience student in July 2023. Subsequently signed a contract of employment with a commencement date of 4 September 2023 for the position of Healthcare Assistant at an hourly rate of €12 per hour for between 36 – 40 hours per week.

Discriminatory dismissal

Section 2 of the Employment Equality Act 1998 defines dismissal as:-

“dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly;’

Despite the initial defence presented by the Respondent, it was accepted in evidence that the Complainant had a valid contract of employment. The contract, signed on behalf of the Respondent and by the Complainant on 28 July 2023, clearly stated a commencement date of 4 September 2023.

It was the Complainant’s evidence that she was dismissed from her employment when she presented for work on 2 October 2023. A follow-up email of the same date was presented as evidence. There was communication between the parties in mid to late October 2023, following receipt of a medical report from CUH. Of particular note is the Complainant's email dated 25 October 2023, in which she again requested a referral letter to see an “occupational therapist” at the hospital in Limerick. However, there was no further communication after this email, even after the Respondent received a letter from the Complainant’s solicitor dated 19 December 2023.

The contract of employment requires either the employer or the employee to provide one month's notice to terminate the contract. No evidence of notice was presented by either party.

It was put to the Respondent’s witnesses why the Complainant could not complete her work experience while the Respondent was deciding what steps to take regarding her medical report. Ms Pop’s evidence was that she never informed the Complainant that she could not complete her work experience. However, the evidence presented does not support this statement, as the Complainant was not rostered for work from July 2023, was asked to leave the nursing home on 2 October 2023 when she presented for work, and received no constructive engagement from the Respondent regarding her position between 14 August 2023 and 25 October 2023.

The Complainant was left in a difficult position due to the Respondent’s inaction. This was her first experience in a nursing home, having previously worked in tourism. She experienced a delay in completing her qualification because she could not complete her work experience. Despite numerous written requests, she was not provided with a letter from the Respondent detailing the number of hours she had worked at the nursing home, leaving her in limbo regarding her career.

I find, on this basis, that the Complainant did discharge the burden of proof in establishing that she was discriminated against by the Respondent as a result of her disability.

Considering the defence put forward by the Respondent, it is not accepted that the Complainant’s failure to provide references and a work permit prevented her from commencing work with the Respondent, relying on the Recruitment, Selection and Vetting of Staff Policy – HR-001. The Complainant gave detailed evidence of her engagement with the Respondent regarding her references from her home country. She also gave evidence that the documents were presented at the interview and to the HR Administrator at the time of signing the contract of employment. It is noted that the HR Administrator did not attend the hearing to give evidence, nor were the personnel file, follow-up correspondence, or the interview notes presented, despite para. 9.5 of the Recruitment Policy providing that “comprehensive records of the interview must be kept and shall be kept on file for at least 12 months”. Finally, it is noted that the two witnesses at the hearing also made up the interview panel who, according to the Policy, were responsible for adhering to the Policy and “no appointment will be finalised until satisfactory references have been received.”

Having regard to the evidence presented, I find the Complainant was treated less favourably, which resulted in her constructive dismissal due to the Respondent’s conduct on the grounds of her disability. Prior to being on notice of her disability, the Respondent moved expeditiously to offer her a role, but upon finding out she was HIV positive, it simply downed tools in the hope the Complainant would quietly move on.

In conclusion, I find the Complainant was discriminated against by the Respondent in dismissing her from her employment due to her disability.

Discrimination on grounds of disability - Failure to provide reasonable accommodation

Section 16(3) of the Act requires an employer to take appropriate measures, where needed, to enable a person with a disability to have access to employment, to participate in and advance in employment or undergo training.  MacMenamin J in Nano Nagle v Daly [2019] IESC 63 held that the Section 16(3) of the Act places mandatory duty on the employer to take all “appropriate measures” unless any measure would constitute a “disproportionate burden” for the employer. The employer must demonstrate that they have fully considered the reasonable accommodation question.  In its judgment the Supreme Court held that the test is one of reasonableness and proportionality.

In Cunningham v Irish Prison Service [2020] IEHC 282 the High Court held: “Justice requires that the person suffering from the disability be given the chance to make his/her case that they could perform the functions required of them if reasonable accommodation were made for them, which was not unduly burdensome on the employer and did not impair the operational capacity.”

While there was no direct or written evidence from the public health authority the Respondent was in contact with, it is entirely reasonable that where the Complainant has a disability, regardless of what it is, they be deemed medically fit to work with the Respondent. The Respondent’s Recruitment, Selection and Vetting of Staff Policy – HR-001 provides that the Complainant be medically cleared as fit to work. It remains entirely unclear how other new recruits satisfied this requirement, as no evidence on this was presented by the Respondent.

The Complainant’s complaint is that the Respondent failed to reasonably accommodate her by arranging a referral to an occupational health physician, discharging payment for her requirement to attend monthly, and considering her own medical evidence presented.

When Ms Downes gave evidence, she was asked what steps were taken with other employees, and she gave an example of an employee attending an occupational health physician in Limerick. It is beyond belief why the same route was not explored with the Complainant. The only response from the Respondent was that it was considering options, yet no evidence of any considerations was presented.

There was considerable confusion as to what exactly the Respondent was seeking from the Complainant: an “occupational health therapist,” an occupational therapist, or a medical doctor. The Complainant described being “clueless” when asked at the hearing, with the Respondent unable to offer any further clarification.

In contrast, the Complainant provided very clear evidence of her numerous attempts to seek support and clarity from the Respondent regarding what it wanted in terms of occupational health, along with offering practical solutions to progress the matter. She was the one who offered a list of consultants and nurses in charge at CUH Infectious Diseases Clinic and provided her full consent to the Respondent, as well as approaching the hospital in Limerick on one occasion and relaying the advice back to the Respondent, which chose not to act. This evidence was supported by equally clear emails, which the Respondent claims it did not receive.

Applying the first part of the test laid out by the Supreme Court in Nano Nagle, I find that the Respondent’s failure to accommodate the Complainant with a referral was entirely unreasonable.

The second element of the test requires consideration of the burden on employers of obtaining an occupational health report, which can be categorised as one of the most basic accommodations an employer can make to allow an employee to access her employment. In no way could it constitute a burden on the employer, even where it states it was advised by public health that the Complainant undertake a medical review on a regular basis. It was put to the Respondent that the Complainant was expected to pay for these reports. However, the Respondent’s evidence is accepted in that it did not even have the foresight to consider this far ahead. Consequently, I find that occupational health report(s) do not constitute a disproportionate burden for the Respondent.

While the law imposes equal obligations on all employers, it is impossible to ignore the fact that the Respondent, a nursing home with experienced nursing professionals holding senior posts, was unable to arrange an occupational health appointment with a doctor and provide clear instructions on what exactly it required from her. It is also noted that an HR Manager and HR Administrator were employed by the Respondent at the time.

In conclusion, I find the Complainant discharged the burden of proof and was treated less favourably due to the nature of her disability, which was different from that of her colleague who was referred to an occupational health doctor, as well as other colleagues who had to be deemed medically fit to work.

Discrimination in getting a job, training, and conditions of employment

Section 8 (1) of the Acts, prohibit any discrimination of an employee in respect of access to employment, conditions of employment, training or experience, promotion or classification of posts is expressly prohibited.

Section 8(5) of the Acts provides:-

 “Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or

(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.”

It was the Complainant’s evidence that she was unable to commence her full-time employment without obtaining an occupational health report at her own expense, which amounted to an access barrier placed by the Respondent.

When a report from a Consultant specialising in the Complainant’s disability and her treating doctor from CUH provided a fitness to work report, the Respondent sought further occupational health reports from the Complainant. The Complainant again wrote, seeking a referral letter as requested by the hospital, and the Respondent’s support in obtaining the medical report it sought. However, there was silence from the Respondent.

As outlined above, it is entirely reasonable for the Respondent, and provided for in its recruitment policy, to seek a fitness to work medical report. However, the concern in this case is the lack of clear engagement by the Respondent with the Complainant on what exactly it required and the failure to make the necessary referral. It is entirely unclear why, at a minimum, the Respondent could not have organised a written referral letter setting out exactly what it sought, instead of sending her on a hopeless pursuit of a report from a professional which still remains unclear. It has already been decided that an occupational medical report did not constitute a disproportionate burden on the Respondent.

The Complainant relied on the Labour Court determination inA Technology Company v A Worker EDA0714, wherein relying on Section 85 (A) (1) of the Acts. The Court relied on Article 2 of Directive 2000/78 EC on a Framework for Equal Treatment in Employment and Occupations which provides that the principle of equal treatment means that there shall be no direct or indirect discrimination whatsoever on ,inter alia, grounds of disability.

The Labour Court continued; “It is well settled that in interpreting national law the Court must do so in light of the wording and purpose of the Directive so as to achieve the result envisaged by the Directive (see Marleasing S.A. v La Commercial Internacional de Malimentacion S.A.ECR 4135). It is therefore necessary for the Respondent to prove on the balance of probabilities that its decision not to offer the Complainant employment was in no sense whatsoever based on his disability.”

The Labour Court set out a two-step test:-

“Firstly, since the facts necessary to prove an explanation can only be in the possession of the Respondent, the Court should expect cogent evidence to discharge the burden of proof (see Barton v Investec Henderson Crosthwaite Securities[2003] IRLR 332 and the decision of the Court of Appeal for England and Wales in Wong v Igen Ltd and others IRLR 258).

Secondly, the requirement to establish that there was no discrimination whatsoever means that the Court must be alert to the possibility that a person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable that a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution (see Nevins, Murphy, Flood v Portroe Stevedores[2005] 16 ELR 282).”

The Respondent’s defence simply does not hold up, as it claims to have been following public health directions while considering available options, yet Ms Downes distinguished the Respondent as a private health facility, as opposed to services available in the public sector. There are numerous dedicated occupational health clinics where employers can refer employees online without any medical expertise. Based on the CUH report, the Complainant’s disability allowed her to work with the Respondent without concern for herself, other staff, or the residents. It is unclear why, from the date it was notified of the disability, the Respondent did not refer the Complainant to an occupational health physician, as it did with another colleague with a different disability, about which Ms Downes testified, instead of issuing vague and unsupported requests to attend an “occupational health therapist.”

Applying the second element of the test to the denial of discrimination, the reliance on the absence of references and/or a work visa is not accepted. The work visa was presented without dispute at the hearing. As outlined above, the defence that the Complainant did not comply with the requirement for references, despite being presented with a signed contract of employment by the Respondent, is not accepted. Consequently, in the absence of any cogent evidence from the Respondent, and where mere denials of discrimination are insufficient, I find that the Complainant, having made every effort to provide medical evidence of her fitness to work, was treated less favourably by the Respondent, leading to discrimination in accessing her employment.

Section 76 Request for Material Information

Section 76 of the Acts provides a potential complainant with the option of requesting “material information” from a respondent to formulate and present their complaint. The Complainant presented the Respondent with an EE2 Form, which was signed on 20 December 2023. No response was received from the Respondent, nor were any submissions made at the hearing.

In the Labour Court determination in Irish Ale Breweries Limited Trading as Diageo v Noeleen O'Sullivan, RP37/2005 the Court observed that no explanation or lawful excuse for this failure was provided. Section 81 of the Act stipulates that in such circumstances, the Adjudicator may draw such inferences as she deems appropriate.

While the case did relate to equal pay, the Court acknowledged “It follows that where a Complainant is obstructed by her employer in obtaining evidence which is in the employer's power of procurement, the employee cannot be thus deprived from an effective means of advancing her claim and the employer cannot derive an advantage from its own default.”

Considering the circumstances of this complaint and the information sought from the Respondent, a response would have been a genuine step in the right direction for both parties in clarifying what was required to remove any barriers for the Complainant and accommodate her in commencing her employment. The absence of a response or any engagement only compounds the Respondent's silence, lack of reasonable accommodation, and barriers to the Complainant's access to employment. It is noted that no material information was sought regarding the complaint of discriminatory dismissal.

CA-00062031-001

Having regard to all the circumstance of this case I am satisfied that the appropriate redress is an award of compensation for discriminatory dismissal, and I order the Respondent to pay the Complainant the sum of €10,000. This sum is arrived at to compensate the Complainant for the discriminatory treatment but also takes into account the Complainant’s short service with the Respondent.

CA-00062031-002

Having regard to all the circumstance of this case I am satisfied that the appropriate redress is an award of compensation for the failure to provide reasonable accommodation and access to employment, and I order the Respondent to pay the Complainant the sum of €12,500 for the discriminatory treatment endured. In awarding this sum, the Respondent’s failure to provide the material information requested, where it would have gone a substantial way in clarifying matters had it been responded to, has been taken into consideration.

Discrimination  - Dismissal – Disability – Access to Employment – Reasonable Accommodation