Complainant

Respondent

Anonymised Parties

A Clerical Officer

A Government Department

Representatives

Mother of the Complainant

Stephen O’Sullivan BL

Act

Complaint Reference No.

Date of Receipt

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

CA-00060387-002

05/12/2023

The complainant has an acquired brain injury and, in his search for a suitable job, he was assisted by a social enterprise established to support people with disabilities to find and succeed in employment.  Following an application through the Public Appointments Service, on June 13th 2022, he commenced in a role as a clerical officer in the Government Department.  Before he started in the job, the disability liaison officer in the Department contacted the careers and employment facilitator in the social enterprise to find out how best the complainant could be supported in his new job.  The complainant filled out a form to indicate the accommodations he required and a copy of this form was included in the Department’s book of documents for this hearing.  The complainant indicated that his disability shouldn’t affect his ability to complete daily tasks and he said that he required clear instructions and a relatively quiet working environment.  He also indicated that accommodations that worked for him in the past were “extra time in completing some tasks, clear instructions and regular check-ins.”

The contract of employment offered to the complainant shows that he was an established clerical officer on a probationary contract for one year.  His annual salary was €27,131 gross.  He was assigned to a vacant post in a particular division of the Department.

After he was about a month in his new job, in July 2022, “Ms AB,” the assistant principal officer and “Ms CD,” a HR business partner, had a meeting with the careers and employment facilitator in the social enterprise, “Ms EF,” to discuss the complainant’s needs.  From then on, Ms EF was included in the complainant’s probation reviews.  Reviews are normally carried out after three, six and nine months.  If probation is considered to have been completed satisfactorily, the employee is signed off as having completed probation after 11 months and before the end of the anniversary of the first year of employment.  On May 10th 2023, Ms AB concluded that the complainant did not successfully complete his probation and he was dismissed.  He complains that he was discriminated against because, when they decided to dismiss him, the management in the Department did not take his disability into consideration.  It is the Department’s position that the complainant’s disability was not the reason for his dismissal.

Chronology of Events Leading to the Dismissal of the Complainant

The complainant had his three-month probation review on September 23rd 2022, with his line manager at the time, Ms AB, who found his performance to be satisfactory.  At the meeting, Ms AB offered the complainant some suggestions regarding organisation and memory.  He had his six-month review a little late in January 2023 and his performance was again considered to be satisfactory.  At this meeting, Ms AB suggested ways of keeping notes and remembering dates.  Following this review, the complainant moved to report to an administrative officer, “Ms GH.”

In February 2023, the complainant and Ms GH had a conversation about the accident that resulted in his brain injury.  He told GH that he was writing a book about the experience and she said that she’d “love to see it when it came out.”

On Thursday, March 9th 2023, the complainant sent GH an email with the subject line, “Freshest TBI writing.”  He attached a 20-page document to the email and in the message, he wrote, “don’t judge me!” with an emoji of a smiley face with a tongue sticking out.  Ms GH read the attachment the following day.  On the first page, the complainant described his visit to a sex shop.  In another part, he described his anxiety around coming out as a gay man and, three quarters way through, he wrote about his first sexual encounter with a man.  The following Monday, Ms GH informed Ms AB that the document that the complainant sent her made her feel uncomfortable, that her working relationship with him was untenable and that she couldn’t continue as his manager.  Ms AB discussed GH’s concerns with the HR business partner, who contacted the social enterprise officer, Ms EF.  CD and EF decided that, until the sending of the document was investigated, the complainant should work remotely in the social enterprise office and that he should report to a different line manager.

If an investigation into this incident took place, the complainant was not involved.  A nine-month probation review should have taken place at the end of April.  On May 3rd 2023, Ms AB invited the complainant to a final review on May 8th.  She informed him that his email of March 9th to Ms GH would be discussed and she gave him a copy of the ICT Acceptable Usage policy and the probation guidelines.  The complainant was accompanied at the meeting by an officer from the social enterprise.  He apologised for sending GH the extract from his book and he acknowledged that what he had done was contrary to the ICT Acceptable Usage Policy.  He claimed that the material in the extract was more implicitly than explicitly sexual and he was surprised that Ms GH was uncomfortable with it.  He acknowledged that he had been warned by his employment support coach that the document was not suitable for sharing in a work context, but he said that he forgot that he had was warned.

The complainant’s performance and attendance were also discussed at this final probation review.  Following the meeting, Ms AB concluded that the sharing of the book material was a breach of the ICT Acceptable Usage Policy and that the complainant had not provided an adequate explanation for his conduct.  On May 10th 2023, Ms AB decided that, under the category of “Conduct,” the complainant’s probation was unsuccessful and she recommended that he should be dismissed.  He appealed against the recommendation not to permit him to pass his probation, but, on June 1st 2023, he was informed that his appeal was unsuccessful.  On June 6th, the secretary general of the Department wrote to the complainant to confirm the decision to terminate his employment.  He was not required to work his notice and his employment ended on June 13th 2023.

Opening her case for the complainant, his mother referred to what she what she described as how he was “treated appallingly” by the Department.  She said that he was “banished” to the social enterprise office and not spoken to directly by anyone from the Department.  He was informed by a support person in the social enterprise office who his new line manager was.  On March 30th 2023, the complainant contacted the disability liaison officer in the Department looking for help, but he got no response.

The complainant’s mother referred to the delay from March 9th until May 8th, the date of his final probation review before the sending of the extract from his book was addressed.  She claimed that he was discriminated against when he was treated “as if he had no voice.”

Summary of the Evidence of the Complainant

Commencing his evidence, the complainant said that he sent his line manager, Ms GH, the extract from his book and then he went on two weeks’ holidays.  When he returned, he got a text message from his support person in the social enterprise who told him to “come into us… tomorrow.”  He was then informed that Ms CD, from the HR unit in the Department, had informed them that there was an issue with the contents of an email that had to be resolved.  He said that his work laptop was dispatched to him by courier, but that he couldn’t log on for almost two weeks.  He was informed that he was temporarily reporting to a new line manager.

The complainant said that his job was fulfilling.  He was required to compile an index of figures and details and to identify who was responsible for certain topics. 

In early May, the complainant said that he met Ms CD from the HR unit.  He then went to a meeting with Ms AB.  He was accompanied at this meeting by a psychologist from the social enterprise.  He said that he was informed that his probation was not confirmed.  A week later, he met Ms CD again and he described this as “the final call.”

The complainant said that he was advised that he could appeal against his probation not being confirmed, or he could resign.  He appealed and his appeal wasn’t successful.  He described his sense of disappointment and disbelief.

Describing his decision to send Ms GH a copy of the extract of his book, he said that this was “most unwise” and the biggest error he made.  He said that he valued the professional relationship he had with GH, and that it was a misjudgement to send her the extract.  He said that he didn’t expect such an outcome.  He said that he feels embarrassed and ashamed.  He did not intend to upset GH and he really valued his job.  He said that it was “just misjudgement.”

Cross-examining of the Complainant

Mr O’Sullivan referred to the role taken on by the support person in the social enterprise after the complainant reported for work there at the end of March 2023.  He asked the complainant if he was happy for the support person to be the liaison person between him and the Department.  The complainant said that he initially assumed that the problem would be resolved within a week.

Mr O’Sullivan referred to the ICT Acceptable Usage Policy and the provision that an employee should not knowingly distribute inappropriate material.  The complainant said that he accepts that this is in the policy but he did not think his actions were “so bad.”  In response to Mr O’Sullivan’s question about GH being younger than him, the complainant said that, when she joined, he thought it was good to have someone around his age in the unit.  He said that he gave no consideration to gender.

Mr O’Sullivan referred to the reasonable accommodation that the complainant requested at the time of his commencement in his job.  He looked for clear instructions and a quiet environment and extra time to complete tasks.  Mr O’Sullivan said that he didn’t tell his employer that he had a problem with judgement.  He said that the first time that the issue of judgement was raised was in a submission to the internal appeals officer.  The complainant replied that, in meetings with the disability liaison officer, he explained that sometimes it took him longer than others to make a plan.

At the final probation meeting on May 8th 2023, Mr O’Sullivan referred to the complainant’s description of his “safe space relationship” with Ms GH.  The complainant replied that the term “circulation” used in relation to his sending an email to GH was a surprise.  He said that he sent the email to one person.

Mr O’Sullivan asked the complainant about having been warned by his support officer not to send the document to anyone in work.  He agreed that he was advised not to send it.  He said that he had a positive, professional relationship with his support officer and she suggested that he should write a book about his experiences.  When he showed her a draft, she told him that she had some contacts in publishing and she advised him to take some time to edit the draft.  He said that, “in humour,” she told him that some of the content shouldn’t be shown to everyone.  He said that he wasn’t specifically told not to show it to anyone in work.

Mr O’Sullivan referred to the notes of the final probation review meeting on May 8th 2023 where, in response to a statement from Ms AB that the complainant received a considerable amount of coaching and support in acclimatising to his role, the complainant replied that “he didn’t feel he was getting any particular support and he didn’t need it.”  The complainant responded that, when he is offered support, he feels embarrassed, then, when he realises that support is essential, he welcomes it.

Mr O’Sullivan remarked that, at his review meeting, the complainant didn’t defend his conduct on disability grounds.  The complainant replied that he “didn’t recognise the association.”  Mr O’Sullivan asked him if he thinks that, if someone who hasn’t got a disability had sent the extract, they would be treated differently.  The complainant replied that someone with better judgement wouldn’t have sent it.  He said that someone without a disability would have been warned.

Mr O’Sullivan referred to the vocational assessment sent to the disability liaison officer in the Department, which set out recommendations to support the complainant in his job.  This assessment makes no reference to judgement.  The complainant replied that he would have presumed that it did.  Mr O’Sullivan repeated that there is no reference in the document to a deficit of judgement.  Instead, the employer is advised to provide clear instructions, to check work, to encourage the use of a notebook and diary, to split work into 25-minute sections and to consider appointing a “buddy” to the complainant.

Mr O’Sullivan referred to the draft extract from the complainant’s book which reveals a difficult experience when he went to work in Beijing.  He had a job lined up as an English teacher, but he was dismissed shortly after he arrived.  The complainant agreed that this was true.  He agreed that a housemate said that she couldn’t share accommodation with him because he said something to her when he had been drinking.  He said that his judgement was impaired in that situation also.

In response to questions from me, the complainant said that he is now employed on an internship in a multinational pharmaceutical company.  He would like to be made permanent in that job, but he would also like to be reinstated in the Civil Service.  He said that, following his accident in 2010, he completed a degree in communications studies in 2013.  In response to a final question from Mr O’Sullivan, he said that he worked in another Government Department between October 2019 and June 2020.

Concluding Submission on Behalf of the Complainant

Concluding her submission on behalf of her son, the complainant’s mother asked me to consider the findings of the UK Employment Tribunal in Kelly v Sainsbury Supermarkets Limited[1].  Mr Kelly was injured in a traffic accident and had a brain injury.  He was dismissed for gross misconduct.  An investigation found that he was offensive to his female colleagues, using sexually inappropriate language.  A report by an occupational psychologist found that Mr Kelly had “significant limitations in terms of cognitive functioning, including aspects of his working memory.”  The Tribunal concluded that the decision to dismiss Mr Kelly was not within the range of reasonable responses of an employer and that a more reasonable approach would have been the procurement of “up to date medical and psychiatric advice, both on Mr Kelly’s culpability and the possibility of avoiding repetition of such conduct in the future.”

Opening his case for the Department, Mr O’Sullivan summarised the comprehensive submission provided to the WRC in advance of the hearing of this complaint.  He noted the fact that the employer was informed about the complainant’s disability in advance of his start date.  Mr O’Sullivan referred to the support provided to the complainant at various stages.  As an example, he said that the complainant had a difficulty maintaining his hours on the clocking system and his line management agreed that he could work set hours.  At his first probation review at the end of September 2022, his manager recognised that the job he was appointed to was previously done by an executive officer, and that it was a challenge for someone at the level of a clerical officer.  After the first review, Ms AB took on the more complex aspects of the job and she assigned the complainant to the tasks more suitable for a clerical officer.

Following his probation review in January 2023, the complainant moved to report to Ms GH.  On March 9th, he sent Ms GH a copy of the extract from his book.  The HR department intervened and the complainant was sent to work remotely in the social enterprise office.  Mr O’Sullivan said that the employer accepts that the complainant’s conduct in relation to the sending of his book extract to GH was not addressed until his final probation meeting.  He acknowledged that the complainant wasn’t consulted before the meeting, but he noted that he was represented at the meeting by a support officer from the social enterprise.

Mr O’Sullivan asserted that, at the final probation review meeting on May 8th 2023, the complainant did not use the defence of disability to explain his conduct, but that he raised his disability in when outlining his case for an appeal of the decision to dismiss him.  Mr O’Sullivan submitted that the complainant was not dismissed because of his disability.

The complainant’s contract of employment provides that he was on probation in an “acting” capacity for one year.  Mr O’Sullivan referred to clause 4 of the contract which provides that a decision regarding the substantive appointment will be based on performance, conduct and suitability from the perspective of health and sick leave.  A decision was made that he did not meet the standard of conduct expected of a clerical office on probation.  His completion of straightforward tasks needed ongoing support and, on a few occasions, he couldn’t be contacted on the telephone during working hours.

Mr O’Sullivan referred to the Department’s ICT Acceptable Usage Policy and the provision at section 3.2 that certain activities are prohibited.  Included under this heading is the distribution of inappropriate material and behaviour that is illegal or likely to cause harassment or offence.

Mr O’Sullivan referred to section 4 of the Guidelines on the Management of Probation in the Civil Service, which provides that an employee on probation may be terminated at the end of the contract term or any time before the end of the contract term, provided that proper notice is given.  Section 17 of these Guidelines state that the purpose of the probation review is to allow a line manager to assess if the probationer’s work meets a satisfactory standard, if their attendance is satisfactory and if their conduct is at a required standard.  Mr O’Sullivan argued that the onus is on the complainant to demonstrate that he has met the standard required under each of these three headings.  He said that an employee is not an established civil servant until probation is passed.

At Appendix 4 of the respondent’s submission, there is a copy of the Reasonable Accommodation Request Form which the complainant filled in before he started in the job in June 2022.  He ticked the box to indicate that he had a cognitive impairment.  He replied to the four questions on the form in the following manner:

Question 1:  How will your disability or condition potentially affect your capacity to carry out duties in the workplace?

Answer:  My disability shouldn’t affect me in completing daily tasks.

Question 2:  What do you understand to be your reasonable accommodation requirements in the workplace?

Answer:  All I require is clear instructions and a relatively quiet working environment.

Question 3:  Is there any specific assistive technology you may require?

Answer:  No

Question 4:  If applicable, what reasonable accommodations have worked for you in the past?

Answer:  Extra time in completing some tasks, clear instructions and regular check-ins.

Mr O’Sullivan identified the sections of the book extract that Ms GH found upsetting.  The first section described the complainant’s visit to a sex shop and the second referred to his dismissal, on his second day in the job, from a position as a teacher in Beijing.  His dismissal arose from offensive remarks he made to a female colleague who was a housemate.

On May 9th 2024, the day before the hearing of this complaint, the respondent provided a second submission.  The main purpose of this extra document was to respond to correspondence from the complainant’s mother which she sent to the Department following his dismissal, on June 11th 2023.

In her correspondence, the complainant’s mother suggested that the Department should carry out some research on acquired brain injuries from organisations such as Headway and Acquired Brain Injury Ireland.  Mr O’Sullivan asserted that the employer cannot make a judgement about how an acquired brain injury affects someone.  It is up to the employee to set this out.

In the document he provided on May 9th 2023, Mr O’Sullivan referred to the Vocational Assessment Report completed for the complainant by Acquired Brain Injury Ireland on May 13th 2022.  Mr O’Sullivan noted that the report did not identify any impairment of judgement on the part of the complainant and it did not state that he needed reasonable accommodation in relation to such an affliction.  In response, the complainant’s mother said that this report was carried out at a point in time and it does not establish that the complainant hasn’t got a difficulty with awareness or judgement in social settings.  Mr O’Sullivan submitted however, that the complainant has provided no expert evidence as to the impairment of his judgement arising from his acquired brain injury.  The degree of reasonable accommodation that he requested was limited to clear instructions, a relatively quiet working environment and extra time to complete his tasks.

The Legal Framework

The issue for consideration here is discrimination against a person because of disability, which is listed at section 6(2)(g) of the Employment Equality Act 1998 – 2015 (“the EE Act”) as one of the nine discriminatory grounds.  It is the complainant’s case that, as a person suffering from an acquired brain injury, the Department failed to provide him with reasonable accommodation when it was decided that he had not successfully passed his probation.  The main reason he did not pass his probation was due to his conduct, arising from his decision to send an extract of a book about his life to his line manager.  Concerns were also identified about his attendance and punctuality and his ability to complete straightforward tasks.

The Burden of Proof

Section 85A of the EE Act transposes into Irish law Article 19(1) of the EU Directive 2006/54 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation.  Sub-section 1 of section 85A states:

“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.”

The effect of this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  This “evidential burden” was described in the decision of Mitchell V Southern Health Board[2] wherethe Labour Court held that,

“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 those 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.”

My task therefore, is to consider if the complainant has shown that, based on the primary facts, he was discriminated against by the Department when no accommodation was provided for the fact that he has an acquired brain injury, and his conduct on March 9th 2023 resulted in him not successfully passing his probation.

Reasonable Accommodation

Section 16 of the EE Act sets out the obligation of employers to employees with disabilities:

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

(a) will not undertake (or, as the case may be, continue to undertake) the duties attached to that position or will not accept (or, as the case may be, continue to accept) the conditions under which those duties are, or may be required to be, performed, or

(b) is not (or, as the case may be, is no longer) fully competent and available to undertake, and fully capable of undertaking, the duties attached to that position, having regard to the conditions under which those duties are, or may be required to be, performed.”

Sub-section 2 is not relevant to the consideration of this complaint.  Sub-sections 3 and 4 were inserted as amendments to the 1998 Act by the Equality 2004 and have the effect of “carving out an exception” (see Daly v Nano Nagle below) to section 16(1) by the introduction of the requirement for appropriate measures to support the employment of a person 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.

(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[.]

(The remainder of this sub-section (c) is not relevant to the complaint under consideration here).

The remarks of Mr Justice McMenamin in his decision on the appeal to the Supreme Court of Marie Daly against Nano Nagle School[3] are useful here.   At paragraph 84 of the majority decision, he addresses the effect of section 16(3) on section 16(1):

“Section 16(1) sets out a premise.  That, is, that an employer is not required to retain an individual in a position, if that person is no longer fully competent, and available to undertake the duties attached to that position, having regard to the conditions under which the duties are to be performed.  But the effect of the terminology of s.16(3) is unavoidable.   It carves out an exception.  It provides that, for the purposes of the “section,” that, is the entirety of s.16, a person with a disability is to be seen as fully competent to undertake any duties, if they would be so competent on reasonable accommodation.  Thus, if a person with a disability can be reasonably accommodated, they are to be deemed as capable of performing the job as if they had no disability; subject to the condition that reasonable accommodation should not impose a disproportionate burden on the employer; including an assessment of the financial and other costs involved.”

It is apparent that the intention of this amendment is to place an obligation on an employer, subject to the “disproportionate burden” criterion, to put in place certain measures to enable a person with a disability to be fully competent to undertake the duties of their role.  By claiming that the Department failed in its obligation to provide him with reasonable accommodation for his disability, the complainant is asking me to find that he should have been treated differently to a person without a brain injury, and that some leniency should have been applied to his failure to exercise proper judgement.

There are a couple of conundrums associated with this premise.  In the first instance, despite the level of support he had from the social enterprise team, when he applied for a job in the Civil Service, and when he started in the job in June 2022, the complainant made no request for accommodation for impaired judgement.  When he sent the extract to GH on March 9th 2023, in the body of the email, he wrote, “don’t judge me!” leading me to believe that he knew that GH might react badly to his writing.  When he was confronted with his behaviour at his final probation review on May 10th 2023, he didn’t say that his brain injury affected his judgement and it was only when he wrote to appeal against his dismissal that he used poor judgement to explain his behaviour.  In preparation for this hearing, he submitted no medical evidence to support his claim that his disability affected his judgement.  I do not accept the complainant’s assertion that the sending of the extract from his book to his manager was caused by poor judgement which can be explained by the fact that he has a brain injury.  It is my view that his conduct was poor judgement by someone who should have and did know better, and that it was unprofessional, immature and attention-seeking.

In the absence of any medical evidence to support his case that his poor judgement was caused by his brain injury, the complainant’s argument that he was entitled to reasonable accommodation regarding his poor judgement falls away.

Has the Complainant Shown that he was Discriminated Against?

Considering the primary facts required to establish an assumption that discrimination has occurred, I intend to examine the treatment of the complainant following his line manager’s complaint about the document he sent her on Thursday, March 9th 2023.  Ms GH raised her concerns with her manager on Monday, March 13th.  By this date, the complainant had departed on two weeks’ holidays, so there was time to decide how to deal with his behaviour while he was absent.  We know from the respondent’s submission that GH said that she was uncomfortable working with the complainant and that she felt that he could no longer report to her. 

I have read the extract that the complainant sent to GH.  By any objective standard, the document is not offensive.  It is not insulting to the reader.  It contains nothing criminal or obscene.  It puts the complainant at the centre of his own narrative and, in the context of a work relationship, it reveals too much about his emotional state and his exploration of his homosexuality.  In tone, it reads to me as rather self-indulgent, but perhaps that’s the appropriate tone for a memoir.  It is my view that a different person may have replied to the document by saying, “I didn’t need to know that,” or “too much information,” but I accept that GH was offended and I accept also that, as the complainant’s line manager, it may have been reasonable for her to be upset.

It is the respondent’s case that, by sending the document to GH, the complainant breached the ICT Acceptable Use Policy.  I have read this policy and the section that the complainant is alleged to have breached is at 3.2 under the heading of “Prohibited Activities.”  Points 1, 2 and 5 are not relevant to the complainant’s conduct and I wish to focus on points 3 and 4: 

“Use of, or disruption of or interference with official ICT services, are specifically prohibited in the following cases:

§  To knowingly access or distribute illegal or inappropriate material, including material that is in any way pornographic, obscene, abusive, racist, libellous, defamatory or threatening;

§  To engage in any form of bullying or other behaviour which is illegal or likely to cause harassment or offence to others[.]

I accept the complainant’s argument that, in relation to the first point, he did not distribute his draft document in the Department and that he sent it to one person.   In relation to the second point, it is evident that GH was offended by his behaviour, and that, to some extent, the complainant knew that she might be offended.  It is apparent therefore, that, by sending her the extract, the complainant was in breach of the ICT Acceptable Use Policy and he accepted this at his probation review meeting.

While the complainant was on holidays, the HR business partner contacted his support officer in the social enterprise and they agreed that the complainant would not come into the office of the Department, but that he would work from the social enterprise office instead.  The Department’s submission states that this was “while the issue was investigated and addressed.”  There is no discussion about how the issue was in fact investigated.  Through a Freedom of Information request, the complainant understands that, on April 28th 2023, the HR office in the Department requested advice from firm of solicitors.  No further action was taken however, until almost two months after the incident, when Ms AB invited the complainant to a probation review meeting on May 8th 2023.

I have a serious concern about how the complainant was treated from the time he returned from holidays in March 2023.  It is regrettable that no one from the social enterprise attended the hearing to give evidence about how it was agreed that he would work from their premises.  If the complainant was not disabled, he would not have had access to the support of the social enterprise and he could not have been “banished,” to their offices.  If he hadn’t got a disability, he would have continued to attend work in the Department, or, he may have been suspended while a disciplinary investigation was initiated.  If this had occurred, the probable outcome is that he would have received a warning, or, he may have been dismissed.  The Department provided no explanation why this wasn’t done at the time.  It is my view that, by relying on the convenience of the complainant’s relationship with the social enterprise, the Department discriminated against him by treating him differently compared to a person without a disability, who could not have been sent to a different location.

If the Department’s management had invoked their disciplinary procedure, then, with the support of a trade union representative or a colleague, the complainant would have had an opportunity to explain his behaviour, to show remorse, to apologise to Ms GH and to argue for an alternative to the worst-case outcome of dismissal.  I am satisfied that a person who is not disabled would not have been deprived of that chance and, in this respect, the Department’s failure to treat the complainant in the same manner as a person who is not disabled was discriminatory.

Reliance on the Findings of the Employment Tribunal in Kelly v Sainsbury’s Supermarkets Ltd

Arguing that he should not have been dismissed, the complainant’s mother referred to the decision in February 2022 of the UK Employment Tribunal in Kelly v Sainsbury’s Supermarkets Limited (footnote 1).  Mr Kelly commenced with Sainsbury’s in 2000 and, in 2004, he was injured in a road traffic accident.  In 2010, he was issued with a written warning when he insulted a female colleague.  A neuro-cognitive assessment carried out in April 2011 found that,

“Some of Mr Kelly’s behaviours in his work place …may be partially accounted for as a consequence of a past head injury and associated hidden difficulties.  For Mr Kelly, a hidden and cognitive disability can make it difficult for him, and indeed his colleagues to fully comprehend.  Behaviour changes and modifications can be developed with counselling support (talking therapies) and helpful strategies acquired through the provision of cognitive behavioural education.”

In 2015, Mr Kelly received what might be described as informal counselling when he spoke in insulting terms to a female colleague and asked her for her phone number.  In 2020, a different female colleague reported that he insulted her and that he had groped her.  Following an investigation, during which other women came forward with similar complaints, Mr Kelly was dismissed.

Judge M Warren, for the Tribunal, found that Mr Kelly was discriminated against when his employer failed to take account of the assessment that was on his file from 2011.  The Tribunal concluded that Mr Kelly was dismissed because of conduct arising from his disability.  Recognising the employer’s obligation to have regard to the health and safety of its employees and to provide a workplace free from harassment, the Tribunal members examined if, by dismissing Mr Kelly, the employer achieved that aim by proportionate means.  Acknowledging the distress and offence caused to Mr Kelly’s colleagues, the Tribunal concluded that a proportional approach would have involved seeking an update of the medical evidence on file for Mr Kelly or seeking the advice of a psychiatrist on the extent to which Mr Kelly’s behaviour could be explained by his head injury, what steps might be taken to prevent such behaviour and the chances of those steps being successful.  By failing to seek up to date recommendations and advice, and by failing to take on board the suggestions of Mr Kelly’s occupational psychologist to the effect that one to one support and counselling may have helped to ameliorate the situation or to avoid repetition of the conduct, Mr Kelly succeeded in his claim that he was discriminated against by reason of his disability. 

While the complainant shares some commonality with Mr Kelly, there are significant differences between the two.  In the first instance, Mr Kelly was employed by Sainsbury’s for just over 20 years and the accident that led to his brain injury occurred in 2004, while he was an employee.  In 2010, Mr Kelly was issued with a written warning and in 2015, he was informally warned about his behaviour.  The neuro-cognitive assessment of 2011 found that Mr Kelly had “a hidden and cognitive disability.”  The complainant in the instant case provided no evidence that his understanding was impaired. 

The important aspect of the Kelly v Sainsbury’s case is the balancing by the Tribunal of the responsibility of the employer to provide a safe environment for its employees with the management of an employee with a cognitive impairment.  While I have no evidence of the extent, if any, of a cognitive impairment that the complainant’s brain injury caused, the Department had a responsibility to ensure that another employee was not offended in the same manner as GH was when she received the extract from his book.  It is my view that, rather than sending him to work in the social enterprise offices, the complainant should have been given an opportunity to provide some reassurances that a similar incident would not happen again.  A simple technical solution may have been the disablement of the “attach documents” facility on his email account. 

Conclusion

I have considered the facts presented to me and I have concluded that the complainant was discriminated against when his employer failed to treat him in the same manner as another person without a disability would have been treated, when his conduct of March 9th 2023 was not investigated in accordance with the Department’s disciplinary procedure.  The outcome of a disciplinary investigation may or may not have resulted in his dismissal; the important fact is that he was deprived of an opportunity to explain himself within the framework of a disciplinary investigation and in the knowledge that his job was at risk.  It is my view that the decision to send him to work in the social enterprise office placed him at a distance and at a disadvantage, with the result that, for the last three months of his probation, he was deprived of an opportunity to demonstrate that he could mend his conduct and achieve the standard of performance required for him to pass his probation.

In accordance with section 79 of the Employment Equality Act, I decide that the complainant was subjected to discrimination on the disability ground.  The options for redress at s.82 of the EE Act provide that I may order reinstatement, reengagement or compensation for the effects of the discrimination, or a combination of two of these options.  The complainant asked that I make an order for reinstatement.  I have considered this course of action, however, I am mindful of the possibility that, if a disciplinary investigation had been carried out, the end result may have been his dismissal, and that such a dismissal may not have been unfair.  It is my view that, despite the support of his line manager, the complainant was not meeting the standard of conduct required for a clerical officer.  His evidence did not provide me with assurance that he was entirely committed to his job as a Civil Servant and I am mindful also that, from October 2019 until June 2020, he was employed in a different Government Department, although no evidence was given as to why that job came to an end.

Therefore, as compensation for the effects of discrimination, I direct the Department to pay the complainant €15,000, which is equivalent to six months’ pay at just over the first point on the current scale for clerical officers.  As this award does not constitute any element of remuneration, it is not subject to statutory deductions.    

Discrimination, disability, probation, disciplinary procedure