Complainant

Respondent

Parties

Mary Tracy

Smurfit Kappa Ireland Ltd t/a the Educational Company of Ireland

Representatives

Michael Kinsley BL instructed by Irish Human Rights & Equality Commission

Niamh McGowan BL instructed by Byrne Wallace LLP

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-00057685-001

13/07/2023

The complainant was employed with the respondent as an educational sales representative.  The complainant has Systemic Lupus Erythematosus.  Further to occupational health and therapy recommendations, the complainant undertook her role with accommodations from in or around March 2023.  The respondent terminated the complainant’s employment in August 2023 on grounds that the complainant was not capable of fulfilling the essential duties of her role.

This decision concerns the claims referred to the Commission on 13 July 2023 under section 77 of the Employment Equality Acts 1998-2015, namely claims of discrimination on grounds of disability in conditions of employment and other, a failure by the respondent to provide reasonable accommodation and victimisation. 

The respondent entirely rejected the claims.

Summary of submissions

Written submissions on behalf of the complainant set out the factual background and relevant law.

The complainant has a disability within the meaning of section 2(1) of the Employment Equality Act 1998; she has Lupus SLE and suffered injury from lifting in her role as sales representative.  The disability comes within section 2(1)(a) of the 1998 Act. 

The complainant’s medical condition was known to the respondent from when the complainant commenced employment in 2019.  It is common case that from April 2022 the respondent was on notice of the impact on the complainant of the physical demands of her role. 

The respondent failed in its duty to reasonably accommodate the complainant.  The respondent failed to have adequate regard to and engage with the medical evidence before it, failed to reasonably explore solutions and failed to seek clarifications or detail regarding accommodations.  There was a failure on the part of the respondent to assess whether the complainant could do her job with the weight restriction.  The internal process implemented by the respondent was biased and pre-judged and the complainant was not informed in relation to the respondent’s process or in a timely manner that her employment may be at risk.  The complainant had no opportunity to input into the respondent’s decisions on her employment.  The complainant was discriminated against in and around the respondent’s biased and ordained assessment of the matter and a failure to provide reasonable accommodation. 

The complaint of discrimination in relation to the complainant’s conditions of employment relates to the respondent’s process. 

The complainant carries out a similar role in her current employment without difficulty, a fact which demonstrates that it was open to the respondent to provide reasonable accommodation to the complainant in line with its statutory obligations.

The complainant was subjected to a predetermined and internal review process after she commenced proceedings under the 1998 Act and after she raised concerns regarding the impact of physical demands on her health.  The respondent’s treatment of the complainant amounted to victimisation within the meaning of section 74(2) of the 1998 Act.

The complainant was dismissed unlawfully from employment on the basis of her disability.

The complainant has suffered significant loss, damage and distress as a result of the respondent’s actions.  The respondent’s flawed and prejudged internal review process caused the complainant significant distress.  The complainant took up new employment after her dismissal by the respondent, which employment is at a significantly reduced salary. 

Summary of complainant’s sworn evidence

The complainant outlined her professional background and qualifications, including her employment history before joining the respondent. 

The complainant was officially diagnosed with Lupus SLE in December 2013.  The complainant described the lengthy process to diagnosis; explaining symptoms, tests and referrals to various medical specialists.  Following a hospital admission and commencement of treatment in 2013, it took the complainant a long time to get back to a stable position health-wise and one where the condition was managed.

The complainant detailed her application for the educational sales representative position with the respondent and the respondent’s recruitment process, including what was discussed at interviews, the complainant’s completion of a pre-employment medical with the respondent’s occupational health in February 2019 and the complainant’s attendance at a 2-day sales training event on new publications prior to commencement in employment.

The complainant described what was involved in the role, including loading her car, demonstrating a book and resources to relevant teachers and the volume of stock she needed to bring to a school.  The objective was for teachers to select and list the respondent’s publications for their subject.  If the complainant was unable to meet with a teacher on a call to a school, she would leave books in the staffroom for teachers to review or for the head of department to distribute.  A storage facility was ultimately arranged for the complainant’s stock.

The complainant began to experience issues with her physical health in September 2020.  In or around this time she applied to the respondent for associated expenses in relation to a wrist strap bandage and ice packs. 

The complainant contacted the respondent’s health and safety committee by email of 7 April 2022.  She advised that she suffered with Lupus SLE, of wearing wrist supports when lifting stock and referred to the physical nature of the job.   The respondent did not take any action further to the complainant’s email.

The complainant contacted the health and safety committee again by email on 5 January 2023.  She reiterated her concern about the physical nature of the job and issues she was having with her joints.   There was no specific response to this email. 

The respondent referred the complainant for occupational health assessment and she attended an appointment on 19 January 2023.   Mr MacCurtain (the respondent’s Finance Director) emailed the complainant on 31 January 2023 about the occupational health report received.  The complainant understood from his email that the respondent would see how they could work around the manual handling in a way that kept the complainant safe and protect her from further damaging herself.    Mr MacCurtain emailed the complainant on 8 February 2023 with suggestions.  

Following the complainant’s attendance with occupational therapy on 13 February 2023, it was recommended the complainant wear a wrist splint for 6 weeks and the complainant was restricted to light duties.

This was the restriction in place when the complainant met with Mr Wright (Sales Manager and the complainant’s line manager) and Ms Glennon (the respondent’s Commerical Director) on 5 April 2023 to discuss the situation.  The complainant detailed discussion at the meeting and how she felt at the meeting that she was in danger of losing her role.  At this stage, the complainant was accompanied on all school visits by a colleague on the warehouse team.  The colleague drove the complainant to school visits, lifted stock and stripped pallets for the complainant.  This measure was put in place with effect from 2 March 2023 and continued until the end of June 2023. 

The complainant attended a meeting with Mr MacCurtain, Ms Glennon and Mr Wright on 20 June 2023.    At the meeting, the complainant was informed that with the most recent occupational health report and the 3kg weight restriction, it was not manageable or workable for the complainant to undertake the role of sales representative.  The respondent informed the complainant of a new role under development that the respondent would like the complainant to consider.

The complainant was sent a job specification for the new role on 22 June 2023.  The complainant was uncomfortable because of the scope of the role and what it entailed.  The complainant also did not feel that she had the skillset or qualifications for certain parts of the role.  It was a target driven role.  The complainant felt she would be at risk of burn-out and that it was a set-up to fail.   At this point, the complainant understood the position to be that her employment with the respondent would end if she did not take up the new role offered.

In an email of 22 June 2023, Mr MacCurtain confirmed to the complainant that her role as educational sales representative was not viable and that it awaited the complainant’s consideration of the new role.  The complainant considered the communication threatening in nature and there to be a shift in tone.  The complainant took issue with the respondent’s position in an email of 23 June 2023, including that loading and unloading of stock and books was a critical part of the role, and outlined the efforts she had made raising issues with the respondent and her request for accommodations.  The complainant concluded the email by stating that she would like to lodge an official complaint to Smurfit Kappa HR.  The respondent’s response was set out in a letter dated 30 June 2023.  The complainant confirmed her agreement to certain parts of the letter and expressed her disagreement and reasons for same in other part.  

The complainant was certified unfit for work by her GP from 3 July 2023 due to work-related stress.

The complainant engaged solicitors who wrote to the respondent on the complainant’s behalf on 13 July 2023.  The correspondence referred to the complainant’s instruction that she was agreeable to engaging in mediation with a view to resolving matters with the respondent.  It further advised of the lodgement of claims with the WRC, which claims specified the complainant’s agreement to engage in mediation and proposed that the status quo remain pending the parties entering into mediation.  The respondent did not revert to the complainant or her solicitors in relation to mediation or the interim proposal. 

The respondent’s CEO advised on 8 August 2023 that a meeting with the complainant was not necessary as part of her review of the matter and that she had sufficient information to make a decision.  The conclusion that the complainant’s employment would be terminated because she was not able to fulfil the essential duties of her role was devastating for the complainant. 

The complainant took up new employment on 6 November 2023.  The complainant attended for occupational health assessment, and recommendations were made, before she took up her current role as sales representative with an educational books’ distributor, which is in the exact same line of business as the respondent.  The complainant outlined remuneration and benefits in her current employment and how she undertakes the work of sales representative in that employment.  

Cross-examination

The complainant did not discuss SLE with the respondent when she started employment as the condition was in remission.  The complainant discussed with Mr Wright issues she was having in November 2020, explained she had SLE and that it affects her joints.  In April 2022, the complainant disclosed to the chair of the respondent’s health and safety committee that she had SLE.  It was accepted by the complainant that she did not contact the chair of the health and safety committee from April 2022 to January 2023, at which time the complainant referred to having bursitis of the knee.

The complainant considered the provision of a driver to be an excessive accommodation and explained how it made her feel; it was the respondent’s accommodation, the complainant was not involved in that decision.

The complainant sought an in-person meeting on 24 March 2023 which was arranged for 5 April 2023. 

The complainant accepted that from 2019, she was selling in accordance with the respondent’s sales model; she was going to schools, presenting books to individual teachers where possible and sometimes had to return to schools to do this.   In terms of the average number of books the complainant was bringing into a school, it depended on how publications were being delivered and car boot capacity.  In a large school, where there were 10 teachers in a department, the respondent’s sales model meant that the complainant would bring in 10 book samples, one for each teacher in the department.  If unable to meet in person with a teacher, the book was left for the teacher.  The respondent’s selling season from September to June is a very short and competitive period within which to get new samples to schools. 

The complainant accepted that the respondent’s sales model required a sales representative to provide to each teacher of a particular subject a copy of the book relevant to the subject and to meet and demonstrate the book with each teacher.  The complainant accepted that the ideal was to meet with a relevant teacher in-person on calling to a school because they have a say in what book will be used in a particular subject. The complainant also accepted there was a marked difference between physical and digital demonstration of a book.  

The complainant thought individual or bulk book posting to schools would have worked and the complainant, within that model, would visit with the book and go through it with the teacher.    The complainant had previously had books posted to a school because of access issues.  The complainant did not agree with the respondent’s position that posting was not an option.  The complainant accepted that she cannot lift more than 3kg but outlined how she can work around the restriction in presenting to teachers and having multiple books.  The respondent’s consideration and ruling out of a box trolley for the complainant was never discussed with the complainant and never trialled by the respondent. 

The complainant had thought the meeting she was asked to attend on 20 June 2023 was a meeting about terminating her employment.    The complainant was very taken aback when she received the job specification for the new role.  She felt very uncomfortable about the new role; this was why she didn’t explore it with the respondent.  The complainant had been hopeful up to the point she received the respondent’s letter on the evening of Friday, 30 June 2023.  She was very upset and stressed and was certified unfit for work from 3 July 2023.  The complainant did not express an interest in the alternative role by 4 July, as advised in the letter of 30 June.  It was intended by her solicitor’s letter dated 13 July to communicate why the alternative role as offered was not suitable.   The complainant did not reject the alternative role offered, rather it was set out on her behalf why the role was not suitable.

Summary of submissions

The respondent entirely rejected the complainant’s claims under the Employment Equality Act 1998.

Claims under ADJ-00048355 are statute barred.

The complainant has failed to establish a prima facie case of discrimination in respect of her claims, as required by section 85(A) of the 1998 Act.  Case law on section 85A and the evidential burden on a complainant was cited.  

The respondent raised an issue as to whether Lupus SLE constituted a disability within the meaning of the 1998 Act.  The respondent was given accounts of injury and a medical condition.  The respondent did not require medical evidence and accepted that the complainant has Lupus SLE, but it was not understood how Lupus SLE falls within the definition of disability.

The complainant provided no basis for her claim of discrimination in relation to her conditions of employment and failed to identify a comparator. 

The complainant failed to identify a protected act undertaken prior to the alleged adverse treatment complained of, which is fundamental to the victimisation claim.  The complainant raising issues in relation to her health is not a protected act within the meaning of the 1998 Act. 

Without prejudice to the foregoing, the respondent will rebut any inference of discrimination and establish that it did not in fact discriminate against the complainant.  There was no reasonable accommodation which could have been implemented that would have enabled the complainant to remain in her role.  The complainant could not perform key aspects of her role as she could not lift and carry more than 3kg in weight.  The respondent requires sales representatives to be able to lift and carry a sufficient quantity of books so that they can personally demonstrate its products.  There is a very hands-on aspect to the role of educational sales representative. Accommodations sought by the complainant were not appropriate, did not align with the respondent’s core sales strategy and the impact of such accommodations on its business would impose a massive burden.  An alternative role was offered to accommodate the complainant and retain her in the respondent’s business.  The alternative role would have addressed all the complainant’s reasonable accommodations needs but the complainant did not engage with the respondent in relation to the new role and declined the role.   The respondent terminated the complainant’s employment on capability grounds following a fair process involving the complainant.

On the complainant’s own account and the medical evidence, the complainant was unable to safely do her job.  The respondent’s actions to keep the complainant safe have given rise to the discrimination claims the subject of this case.  

The respondent was not required to provide the complainant with an alternative role however, such was the esteem in which it held the complainant, it offered the complainant another role for which she was a perfect match.  The complainant did not engage with the respondent at all in relation to that role. 

The height of the complainant’s case is that the respondent did not allow work to be done in a way that was contrary to its sales model.  The respondent’s offer of an alternative role to the complainant shows that the respondent went above and beyond in accommodating the complainant.

The background to the respondent company and its trading unit was set out in written submissions, including its commitment to inclusivity and ensuring health, safety, mental health and wellbeing of its entire staff and its initiatives in this regard.  

The background to the complainant’s employment and the issues that led to these proceedings was also set out in detail.

Summary of Alan Wright’s sworn evidence

The witness has been sales manager with the respondent since 2012.  He described the respondent’s business of selling schoolbooks, the respondent’s sales process, how the respondent’s sales model operates and the selling season. Each sales representative on the team has their own geographical area with primary and post-primary schools.  The sales model operates on a sales representative having direct interaction with relevant teachers involved in the decision-making process of book selection.  This involves a sales representative bringing a teacher through the unique selling points of a title with product in hand and providing the teacher with a sample of the book and accompanying resources.  The ultimate objective is to have the respondent’s titles listed on book lists for an academic year. 

The witness was involved in two interviews with the complainant in 2019 for the role.  He outlined how the role was explained in great detail to the complainant at the first interview and how the second interview included a product-based presentation by the complainant reflecting the respondent’s sales model.  

The witness explained why he did not believe it possible to undertake the role with one book in hand per school visit. 

The respondent’s customer base has informed the respondent’s approach in demonstrating hard copy as opposed to soft copy of books.  During the Covid pandemic, books were posted to teachers but those were exceptional circumstances.  The respondent could utilise its core staff to undertake posting, without hiring additional staff, due to the impact of the pandemic on other areas of its business.   As schools reopened, the respondent’s sales representative team and the respondent’s competitors reverted to type, namely going into schools and presenting product.

The witness was made aware by the complainant in April 2022 that she had Lupus SLE when the complainant mentioned the impact of the condition on her wrist.  The witness was unaware of the extent and impact of the condition until the WRC hearing in April 2024. 

The witness was not involved in the complainant’s referral to occupational health in January 2023.  The witness informed the Finance Director and management team in February 2023 that the complainant had advised she could only lift one book at a time.  The witness was not involved in deciding the measure to address this restriction.

The witness was present at the meeting of 5 April 2023, requested by the complainant to get clarity around the approach going forward.   The witness recalled what was discussed at the meeting and his response to the complainant’s proposal of posting books. The witness did not deal with the complainant’s reference to funding for disability supports.

The witness was a note-taker at the meeting of 20 June 2023, and also attended the meeting in his capacity as the complainant’s direct line manager.  The witness concurred with the communication at that meeting that the weight restriction of 3kg made it not manageable or workable for a sales representative to do the job properly.  From the witness’ perspective, there was no possible workaround other than one that would put the respondent at a distinct disadvantage in the market.  The witness could not recall a box trolley being discussed at the meeting.  The witness thought it an unrealistic proposal in terms of weight and accessibility.

The witness had been asked by Ms Glennon whether he thought the complainant would be suitable for the new CPD and Development Executive role and he unreservedly thought so.

The complainant was on certified sick leave shortly after the June meeting and the witness had no further involvement vis-à-vis the complainant and her employment, other than receiving medical certificates from the complainant.

Cross-examination

The current job description for the educational sales representative role includes bringing in samples to schools in the key duties section. 

The witness understood the purpose of the 5 April meeting to be to get the complainant’s perspective as to where she saw things going.  The posting option had been considered by the respondent.  Analysis of the posting option and its impact had been undertaken in Covid.  In the witness’ opinion, the posting option would not have worked. The witness did not mention or discuss the disability supports funding with Mr MacCurtain.   The witness did not know why the notes were not given to the complainant until 30 May 2023.  It was possibly a week in advance of the 20 June meeting that Ms Glennon asked the witness whether he thought the complainant would be suitable for the new role.  Ms Glennon did not tell the witness that the solution was for the complainant to move to the alternative role.   The witness knew in advance of the 20 June meeting that the complainant was to be offered the new role.  It was abundantly clear at that stage that the role of educational sales representative was not doable by the complainant and that there was an alternative role.

Summary of Julie Glennon’s sworn evidence

Ms Glennon is Commercial Director with the respondent and a member of the respondent’s management team. 

The witness was involved in interviewing the complainant for the role of educational sales representative.  The witness outlined how the interviews were conducted and how interviewers are very clear, particularly where applicants are not in the industry, about the volume of teachers and volume of material involved in the selling process.  

The witness was made aware by Mr MacCurtain in April 2022 of an issue with the complainant’s ability to lift product.  She recalled being told that the complainant had raised an issue concerning her wrist. The witness had understood that everything was fine following contact between the health and safety committee and the complainant.

The witness was aware that a colleague had been assigned to assist the complainant in or around February 2023.  The situation with the complainant had escalated in January 2023 to a medical situation.  The stopgap, interim measure of assigning a colleague to the complainant was the action taken on foot of the January 2023 occupational report to protect the complainant’s health and ensure that she was not exposed to risk.  There was no weight restriction at that time.  The witness became aware of a 3kg weight restriction in May 2023 when a revised occupational health report was received by Mr MacCurtain.

The witness was asked by Mr MacCurtain to meet with the complainant as the complainant had requested a follow-up meeting.  The purpose of the meeting, held on 5 April 2023, was to follow up on the occupational therapy report dated 14 March 2023.  The 3kg weight restriction was not discussed at all at the 5 April meeting.  The witness had hoped that the complainant would discuss her understanding and views on the medical reports at the meeting.  The complainant at the meeting conveyed how, with lifting, her symptoms could flare up.  The witness felt that the measure of the colleague assigned to assist had to continue in the circumstances outlined by the complainant.  The complainant asked about posting books to schools and the sales manager explained why this was not viable.  The evidence was that continuing to lift would cause the complainant long-term damage.  At the time of the meeting, the complainant was doing no lifting at all and that was the discussion at the meeting.  The witness spoke with Mr MacCurtain about looking into the disability supports funding referenced by the complainant at the meeting.  The witness did not personally look into this.   

The witness explained the background to development of a new role in the primary sector.  Based on the situation with the complainant, the witness raised with Mr MacCurtain whether the complainant would be suitable for the role.  The witness had no doubts about the complainant’s suitability for the role. 

The purpose of the meeting with the complainant on 20 June 2023 was to indicate to the complainant that her role as sales representative was not tenable due to the lifting requirement and to ask her to consider the new role.  The witness asked the complainant on a number of occasions to come to talk to the witness and the CEO about the role.  The respondent was open to the role being whatever the complainant wanted, provided minimum criteria were met.  The complainant did not respond to an email from the witness of 22 June 2023 sending on the job spec for the new role.  It was the understanding of the witness, and it was made explicitly clear to the complainant that her role as sales representative was finished if she didn’t accept the new role.  The witness fully expected the complainant to take the new role.  There was zero lifting involved and no risk to the complainant’s health.  The witness did not accept as accurate the objection taken by the complainant to the new role.  

Cross-examination

The witness described the process of assessing the complainant’s capacity to do her job as a very true and medical-based process. 

The witness had seen the occupational physician’s report of January 2023 and the occupational therapy report of March 2023 before the 5 April meeting with the complainant.  After the April 2023 meeting, the witness was to report back to Mr MacCurtain on the meeting.

The witness was involved in decisions regarding the complainant’s employment; Mr MacCurtain ultimately made the decision about the complainant’s role as educational sales representative and the witness put forward the alternative role.  The witness’ understanding of the physical restrictions in April 2023 was based on the occupational therapy report that the complainant could not lift anything.  The only suggestion from the complainant in relation to the lifting/carrying restriction was posting.  The witness did not engage with occupational therapy in relation to a work site assessment. 

After the May/June 2023 medical reports, the decision was taken to offer the complainant the alternative role.  This was not a decision that was documented, but the witness was sure it was discussed ad nauseam how the role would work out.  It was clear to the witness, and very clear in the meeting of 20 June, that the complainant’s employment as sales representative was being terminated.  It is clear from the complainant’s email of 23 June 2023, where she refers to the role no longer being viable, that the complainant also knew this.  The alternative role was there for the complainant to shape or mould as her own.

Summary of Eugene MacCurtain’s sworn evidence

The witness is the respondent’s Finance Director, with responsibility for the HR function.  He is a member of the respondent’s management team, along with the CEO and Commercial Director.  The respondent’s health and safety committee report into the witness.

From January 2023, the medical evidence presented a health and safety issue in respect of the complainant undertaking her role in employment.  The witness was aware of the health issue raised by the complainant in April 2022 and that she referred to having Lupus SLE at this time.  The witness thought the complainant was ok at that stage.  

The witness understood from the occupational physician’s report of 19 January 2023 that the complainant was medically fit for her role but that the respondent could take some actions to assist. The witness spoke with members of the health and safety committee regarding the recommendations in the report and this resulted in his email to the complainant of 8 February 2023 with suggestions.  Within a couple of weeks of the occupational health report, the witness received from the complainant an occupational therapy report deeming her fit for light duties and informing of the complainant wearing a left wrist splint for a period. The witness spoke with the complainant’s occupational therapist regarding what light duties entailed; the occupational therapist referred to carrying one book.  The witness discussed with Ms Glennon how the role could be replicated as closely as possible with the one book restriction, and it was decided to provide the complainant with an assistant.  It made sense for the colleague to do the driving as they were coming from the warehouse facility to meet the complainant.  The colleague drove the car, loaded and unloaded, and carried stock into schools. 

The complainant contacted the witness and requested a meeting to discuss the occupational therapy report of March 2023.  The witness did not see anything different between the March 2023 and February 2023 occupational therapy reports. The witness was absent from work for personal reasons from in or around the end of March 2023 until the end of April 2023.  The witness asked Ms Glennon to meet with the complainant in his absence to find out how the complainant was managing.  

Following his return to work, the witness followed up with the complainant on 11 May 2023.  He wanted to get sign-off that the complainant was fit for work, having completed the 6-week wrist splinting. 

The witness received the occupational therapy report dated 29 May 2023 which referred to the complainant avoiding lifting boxes and carrying multiple books and made a referral to occupational health on 7 June 2023.  The witness received minutes of the April meeting from the Commercial Director on 30 May 2023. 

The medical reports did not feedback that the complainant’s condition was going to improve.  Both occupational therapy and occupational health were recommending the 3kg manual handling restriction; occupational health included the recommendation for at least 6 months and referred to a guarded prognosis.  The witness had hoped that with the break from lifting and with the medical treatment that the complainant’s condition would have improved.

Based on the respondent’s sales model, the only reasonable way the respondent could facilitate the complainant doing her job carrying one book was to have someone accompany the complainant by way of assistance.  It was the only reasonable way it could protect the complainant’s health. 

On 14 June 2023, the respondent sent the complainant the occupational health report of 12 June and informed the complainant that he would arrange a meeting with her, Mr Wright and Ms Glennon as soon as possible.    By June, the witness could not see how the role could be undertaken with the weight restriction referred to in three different reports.  The witness set out the respondent’s position in a letter dated 30 June 2023.  On 30 June, the option open to the complainant was to accept the alternative job.  As far as the witness was concerned, the role of sales representative was not doable.    The witness’ involvement in the matter ended on 19 July 2023.

Cross-examination

The witness confirmed that it does not have a written policy or procedure for dealing with this type of situation.  It is the first time it has come up in the witness’ 17 years with the respondent.   The witness agreed that in January 2023, making the referral to occupational health, he linked the issues the complainant was experiencing with the rheumatological condition referred to in her pre-employment medical. The witness assumed Lupus SLE was the rheumatological condition when in contact with the health and safety committee in April 2022.  The witness’ understanding of the issue raised by the complainant in April 2022 was that the complainant was fine, and the matter was closed.  

Following the occupational health report in January 2023, the witness asked members of its health and safety committee to consider solutions or come up with suggestions in relation to the manual handling recommendations.  The suggestions were communicated to the complainant by email of 8 February 2023. 

After the witness returned to work at the end of April 2023, he spoke with the Commercial Director about her meeting with the complainant on 5 April.  The witness had not requested notes be taken of the meeting and he didn’t ask for them when he returned.  At the end of May, the complainant expressed dissatisfaction about the April meeting and conveyed that a colleague accompanying her in her role was not the solution she wanted. The witness did not liaise with the complainant regarding the May and June medical reports.  The witness did not progress the work site assessment referred to in the May occupational therapy report because of the complainant’s role involving over 200 schools.  The witness accepted that nowhere in the notes of the 20 June meeting did he say the complainant’s role was finished.   Asked about the complainant’s letter following the meeting which referred to an accommodation of posting samples, the witness said that the only accommodation he thought reasonable was a driver and lifter to ensure that the complainant did not injure herself.    The offer to meet in a letter sent on the complainant’s behalf dated 13 July 2023 was not taken up by the respondent; there were WRC proceedings enclosed with that letter.  

The respondent wanted to prevent injury occurring to the complainant and, on that basis, the witness could not sanction her staying on in the sales representative role.  The complainant was a credit to the respondent company and very focused on her role.  The witness thought the alternative role was a really good way of providing reasonable accommodation for the complainant.  The witness had looked into available government funding in May 2023 when the Commercial Director said it came up in the April meeting.  His understanding was that the funding was for structural measures in fixed places of work.  The money was not however the issue, the issue was the manual handling weight restriction and accessibility to schools.

Summary of Martina Harford’s sworn evidence

Ms Harford joined the respondent in 2000 as Sales and Marketing Manager and has been its CEO since 2008.  In the role of CEO, the witness has responsibility for and oversight of all departments and areas in the respondent business. 

The witness explained the self-sufficient nature of the respondent’s operations in the context of Smurfit Kappa.  The witness explained how the respondent takes very seriously the health, safety and wellbeing of its employees and its efforts in this regard.   The witness conducted the appeal under the respondent’s grievance process. 

In relation to the appeal, the witness understood it to be of the decision to terminate the complainant’s role as sales representative.  The witness was aware from correspondence dated 19 July on behalf of the complainant that the offer of the alternative role was rejected. 

The witness outlined the file content for the purpose of dealing with the appeal, which the witness had received from Mr MacCurtain.   The witness was interested in the medical evidence and the various steps taken by the respondent to deal with the complainant’s situation and make it better.  The witness considered the appeal under a number of categories:  medical evidence, the role itself, accommodations or considerations that were put in place over the preceding months and years and whether the accommodations could be revisited or anything else done.  The witness had no meetings during the appeal process; she felt she had a very comprehensive file to deal with the appeal.  First and foremost, the witness was not willing to take any risk whatsoever on the complainant’s health. The witness did not consider maintaining the complainant in the role for a further 6-month period with the weight restriction because of what the complainant had said about lifting causing her condition to flare up.  The complainant’s role as sales representative was terminated on 20 June 2023 but not her employment as it was fully expected that the complainant would continue in employment in the alternative role. 

Cross-examination

The witness was made aware sometime between 12 June and the meeting of 20 June 2023, of Mr MacCurtain’s decision that the complainant could not be accommodated in the sales representative role.  Mr MacCurtain informed the witness of his decision and reasoning for same, namely that the respondent could not keep the complainant in the role and keep her safe at the same time.   The witness read the medical reports when Mr MacCurtain told her of his decision.  She had been aware of the issue from January 2023, and it was the witness’ view that the reports were getting worse. 

In terms of dealing with the appeal, the witness did so under the complainant’s contract of employment.  The witness considered the April meeting to have been the first hearing in the grievance procedure and felt that the complainant had got more than the procedure provided under her contract of employment.  The witness referred to a key finding from the April 2023 meeting which was that the complainant said she didn’t think she would be in a position to go back to lifting.  The function of the witness on the appeal was to review Mr MacCurtain’s decision that the complainant could not be accommodated in her job.  The witness carried out a substantive and procedural review, which included considering reasonable accommodation in the role.  Asked about her ability to deal with the appeal in an open and unbiased manner, the witness had made up her mind that the respondent would not willingly put the complainant’s health and safety at risk but was reviewing whether the respondent had done this correctly and whether there was anything that could now be done to make the role safe for the complainant.  To do what the complainant was suggesting would put the respondent at a disadvantage, and to expose the complainant to lifting was not acceptable.   The witness considered the matter of accommodations in her mind.  The witness did not consider meeting with the complainant as part of her process as she felt she had sufficient information to make her decision. Government supports were not part of the witness’ deliberations on the appeal, money was never the issue in relation to the complainant carrying out the role.  The primary consideration was the complainant.  Even had there been a sum of money granted in support; the witness was not sure it would have been used to put in place a driver for the complainant. 

The witness considered the measure of providing an assistant to the complainant to be the best accommodation it made, save for the alternative role, so that all lifting was alleviated for the complainant.    

The complainant commenced employment with the respondent as an educational sales representative in March 2019.  The respondent is a leading educational publisher in both the primary and post-primary school sectors.  The complainant was diagnosed with systemic lupus erythematosus (“SLE”) in December 2013.  She experienced difficulties in April 2022 with joint pain and was advised to wear wrist supports when lifting.  In January 2023, occupational health assessed the complainant as medically fit to remain at work in her contracted role with an accommodation or support of not lifting weight greater than 3kg.  Following occupational therapy certification as fit for light duties in February 2023, the respondent arranged for another staff member to accompany the complainant to carry out all lifting and carrying for the complainant and to drive the complainant on her calls.  There followed in June 2023 further occupational health assessment and recommendation that the 3kg manual handling restriction continue for at least a further period of 6 months.  The respondent decided that the sales representative role was not viable for the complainant with the weight restriction and, on 20 June 2023, asked the complainant to consider moving into an alternative role.   Ultimately the alternative role did not progress and the complainant’s employment with the respondent ended on 22 August 2023.

The claims referred to the Workplace Relations Commission on 13 July 2023 under section 77 of the Employment Equality Acts 1998-2015 were of discrimination on grounds of disability and victimisation.

The Legal Framework

The Employment Equality Acts 1998-2015 (the “Acts”) prohibit discrimination in employment-related areas on nine protected grounds, which includes the disability ground. 

Discrimination on grounds of disability occurs where a person with a disability is treated less favourably than another is, has been or would be treated, where the other person is a person without a disability or a person with a different disability. 

Discrimination in relation to conditions of employment is prohibited, as is victimisation by an employer of an employee occurring as a reaction to certain specified matters.

A person with a disability is fully competent and capable of undertaking any duties if the person would do so on being provided with appropriate measures/reasonable accommodation.  An employer has a duty to take appropriate measures where needed in a particular case, provided that such measures do not impose a disproportionate burden on an employer.  A disproportionate burden is evaluated by taking into account, in particular, financial and other costs, the scale and financial resources of the business and the possibility of obtaining public funding or assistance. 

In this regard, section 16(3) of the Acts provides:-

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

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

(i) to have access to employment,

(ii) to participate or advance in employment, or

 (iii) to undergo training,

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

(c)  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.”

Section 16(4) provides as follows with respect to “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 herself or herself;”  

Disability

It was accepted by the respondent that the complainant has SLE and medical evidence concerning SLE was not required.

The respondent did however raise as an issue the complainant’s account of an injury and a medical condition and whether the within claims were grounded on a disability within the meaning of the Acts.  This appears to arise from the complaint form’s statement of complaint and communications from the complainant in the course of her employment wherein injury and the impact of the physical aspects of the role are referred.

Disability is defined in section 2(1) of the Acts as:-

“(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;”

It was submitted on behalf of the complainant that the complainant has a disability within the meaning of (a) of the disability definition contained in section 2(1) of the Acts.

The Court of Justice of the European Union (the “CJEU”) considered the meaning of disability for the purpose of the Equal Treatment Directive 2000/78/EC in HK Danmark v Dansk almennyttigt Boligselskab (C-335/11 and C-337/11), and I note the following from the judgment:-

“the concept of ‘disability’ in Directive 2000/78 must be interpreted as including a condition caused by an illness medically diagnosed as curable or incurable where that illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long one”

On the uncontested medical reports before me, SLE is referred to variously as a rheumatological condition and an autoimmune disease.  Following SLE diagnosis in 2013, it took time for the complainant to get to a stable position health-wise and to a position where the condition/disease was managed and under control.  The complainant was on immunosuppressant treatment for SLE.  The complainant was under the care of a consultant rheumatologist for management of SLE in 2019 when she commenced employment with the respondent and remained under their care during the timeframe material to these claims, including at the time of referral to a hospital’s occupational therapy department for assessment due to joint pain in her hands and wrists in February 2023.  

Occupational health assessment reports dated 19 January 2023 and 12 June 2023 record that SLE can cause inflammation of the joints and that symptoms could be aggravated by certain tasks.  The complainant consulted with her consultant rheumatologist for management of her symptoms of pain.      Letters from the occupational therapy department dated 14 March 2023 and 29 May 2023 advised that the complainant should avoid heavier activities, including lifting boxes of books and carrying multiple books as this exacerbated the symptoms of joint pain and swelling in her wrists.  Lifting boxes of books and carrying multiple books was undertaken by the complainant in her role in employment up until in or around February 2023.

Based on the medical information before me and the complainant’s undisputed evidence regarding SLE and the symptoms experienced by the complainant, I am satisfied that SLE is a chronic inflammatory condition or autoimmune disease which can cause various bodily symptoms and disorder if not in remission or well-managed.  It was not disputed that physical symptoms developed for the complainant such that her full and effective participation in employment as an educational sales representative with the respondent was hindered from in or around January 2023.  I note that this was acknowledged by the respondent in correspondence to the complainant’s solicitor dated 25 July 2023 wherein it stated that it understood the complainant to have “a medical condition that prevents her from lifting and carrying more than 3kg in the course of her duties”.  

In the circumstances, I am satisfied that the complainant has a disability within the meaning of the Acts, and that it falls within section 2(1)(c) of the Acts as a condition or disease that constitutes a malfunction of a part of the body.

Burden of proof

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

"Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary."

The following established facts are of sufficient significance to give rise to a presumption of discrimination.  The complainant has a disability, the symptoms of which, in 2023, impacted on her ability to carry out the role of educational sales representative in the way required by the respondent.  The respondent was aware that the complainant had SLE and had connected the health issues the complainant was having with the condition.  The complainant provided the respondent with reports from her treating occupational therapists and the respondent obtained occupational health opinion.  The last occupational health report, which was concerned with assessing the ongoing need for a manual handling weight restriction and the complainant’s fitness to drive, assessed the complainant as fit to continue in her role but with manual handling restrictions.  The complainant was assessed fit to drive for work.    At a meeting on 20 June 2023, the complainant was informed that her employment as an educational sales representative was no longer viable.  The complainant sought accommodation to enable her to continue in the role.  The complainant’s employment was terminated as a result of the respondent’s conclusion that there was no way the complainant could safely continue in her role. 

On the basis of the foregoing, I am satisfied that the complainant established a prima facie case of discrimination such that the burden of proof shifts to the respondent in accordance with section 85A of the Acts.

Discrimination on grounds of disability

There have been significant developments in this jurisdiction in recent years in the way that disability is viewed and in ensuring effectiveness of the rights of persons of disability in the employment context.  The failure to provide reasonable accommodation as a form of discrimination is well-established and recognised.  The Convention on the Rights of Persons with Disabilities (the “CRPD”), ratified by the European Union and Ireland, has been a significant feature of developments along with the judgment of the Supreme Court in Nano Nagle School v Marie Daly and Irish Human Rights and Equality Commission [2019] 30 ELR 221 on the interpretation of section 16 of the Acts. 

As per Mr Justice Barr in Irish Prison Service v Cunningham [2020] 31 ELR 317:-

“It is clear from the decision in the Nano Nagle case that there has been a paradigm shift in the way that disability is to be viewed in European and Irish law.  This has been brought about by the implementation in Irish law of the Framework Directive in the Employment Equality Act (as amended) and in particular, by the general duty of providing reasonable accommodation which is placed upon the employer by s.16 of the Act.  The judgments of the CJEU referred to earlier and the judgement of the Supreme Court in the Nano Nagle case, make it clear that the provisions of the Framework Directive and of the Act provide rights of real substance to persons of disability, who wish to enter or remain in work.  In addition, the Nano Nagle case makes it clear that the provisions of the CRPD are also relevant to the question of the correct interpretation of the Act.”

The import of section 16 of the Acts and an employer’s duty was addressed by MacMenamin J in Nano Nagle as follows:

“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, the scale and financial resources of the employer, and the possibility of obtaining  public funding or other assistance.  But s.16(3)(b) explicitly identifies the mandatory primary duty of an employer.  He or she shall take appropriate measures where needed in a particular case to enable a disabled person to have access to employment, to participate and advance in employment, and to undergo training, unless these measures would impose a disproportionate burden.”

Whilst it is clear from Nano Nagle that there is no discrimination if an employee is unable to undertake the duties attached to the position on the provision of reasonable accommodation, it is further clear that an employer must engage in some form of exploratory action in discharge of its duty under section 16, whether by way of consultation, assessment or some other step for compliance, to establish whether the position is capable of adaptation and the measures required to remove or mitigate barriers.

I turn now to consider the respondent’s actions by reference to its obligations under section 16 and the complainant’s claim that the respondent failed to provide reasonable accommodation for the complainant’s disability.

Duties of the educational sales representative role

The complainant was employed as an educational sales representative with the respondent in 2019.  The duties of the role involved selling and promoting the respondent’s educational publications and resources, and account management or customer service of the schools in a designated sales territory.  The parties differed on whether the complainant was aware of the physicality involved in the role before she commenced employment. 

The relevance of this to my adjudication of these equality claims relates to the position of the parties regarding lifting and carrying product being a key or minor part or duty of the role.  This issue was put to Mr Wright in cross-examination when he was asked about the role advertisement and contractual documentation and the fact that the advertisement did not include lifting and carrying as a key duty and the contractual documentation did not detail the duties of the role.   The respondent’s evidence was that lifting and carrying is an intrinsic part of the respondent’s sales model and process whereby an educational sales representative brings product and samples into schools.   I note the respondent’s referral to occupational health in January 2023 which asked whether the complainant was capable of lifting schoolbooks or boxes of schoolbooks and loading / unloading her car.  The complainant’s evidence was of being told at interview that the role involved selling and presenting educational products to schools, including through digital means, and delivering on customer service to primary and post-primary schools in her sales territory.  The complainant delivered a presentation at a second interview in the recruitment process which involved demonstrating product.  Whilst the complainant may not have been aware of the extent of the physicality involved at the time she decided to take up the role, I consider it appropriate to focus on the work actually undertaken by the complainant in the role. 

Save for a period of school closure during the Covid pandemic, up until January/February 2023, the complainant was calling to schools in her sales territory, demonstrating and providing books to teachers in accordance with the respondent’s sales model.  The manual handling aspect of the role was not disputed by the complainant.  The complainant’s direct evidence was of her car being loaded with stock. She described what was involved in demonstration of a textbook in a school and the volume of stock she needed to bring into a school.  It was common case that the objective of the respondent’s sales model was to meet with a teacher or group of teachers and go through the key selling points or features of a book and available resources with them so that the respondent’s product would be selected and listed as the primary or preferred text and for the book to then be purchased or obtained through the book hire scheme.  It was also common case that the complainant raised the physical nature of the job as an issue on a number of occasions, including in April and November 2022.

Irrespective of whether the manual handling involved in the educational sales representative role was expressly brought to the complainant’s attention at the recruitment stage, it was evident to me that the complainant’s role from day one in employment involved manual handling.  I do not consider it necessary to resolve the question of whether manual handling was an essential part of the role.  I am satisfied that manual handling was involved in the duties attached to the complainant’s role as educational sales representative with the respondent.   I am further satisfied that the manual handling, and its extent, arose from the respondent’s sales model.  

Factual position in relation to the complainant’s capacity

There was no concern or need raised by the complainant in employment in 2019.  I am satisfied that the respondent’s obligation to take appropriate measures was not engaged at this time because such measures were not needed. 

The complainant raised concerns with the respondent in 2020 regarding Covid, being on immunosuppressant treatment and in a high-risk category.  The respondent sourced face shields for the complainant and it facilitated the complainant in attending meetings remotely rather than in-person.  The complainant’s concerns arose in the context of going into schools and contact generally; concerns of this nature around contact and interaction with others were held by persons of disability and of no disability at the time.  The complainant was fully capable of undertaking her duties in employment in the first part of 2020 with the shield and cocooning accommodations. 

The complainant experienced some issues in employment in November 2020 with her wrists. 

There was a dispute between the parties as to whether the complainant told the respondent in 2020 specifically that she had SLE and whether disability featured during the first three years of the complainant’s employment.  However, I do not consider this to be material to the within claims because I am satisfied that the respondent was aware of the complainant’s disability at the time the respondent’s duty under section 16(3) of the Acts was triggered, which I address below. 

The complainant emailed the chair of the respondent’s health & safety committee on 7 April 2022 with the subject matter ‘Health Issue’.    I am satisfied, on the evidence of both the complainant and Mr Wright, that this email was as a result of the complainant having informed Mr Wright that she had SLE and of its impact on her joints.  I am further satisfied on the evidence of Mr MacCurtain that he was made aware at this time that the complainant had SLE and that she had raised a health issue and, on Ms Glennon’s evidence, that she was aware of an issue with the complainant’s wrist and ability to lift product at this time.    I consider it significant that in the same email that the complainant stated she suffers with SLE and that part of it affects her joints, the respondent was informed of the following by the complainant:-

“At my rheumatology apt I was advised to wear a wrist splint at night and I also have continued to wear wrist supports when I’m lifting stock.

“I have always found the physical nature of the job challenging but in the last few weeks I have really struggled with the weight of the boxes.  I’m not really sure what I should do, but I thought I’d start by letting you know.”

An acknowledgement email from the health and safety committee representative of 12 April 2022 advised the complainant that the health and safety representative and Mr MacCurtain were going to look into the issues raised and revert.  Within 30 minutes of this acknowledgement email having been sent to the complaint, the complainant responded thanking the sender.  I am not satisfied that it was reasonable for the respondent to understand, based on a statement in the complainant’s response email that she was fine, that the matters referred to by the complainant in her email of 7 April 2022 were resolved or not an issue.  The emphasis placed on the complainant’s statement as justification for such an understanding disregards the context, namely the content of the email of 7 April 2022, including that the complainant is wearing wrist supports, the email from the health and safety committee chairperson saying the issues raised would be looked into, and the complainant’s response email thanking them for so doing.  In such circumstances, I find it difficult to accept as reasonable the respondent’s understanding of the position to be that everything was fine. 

The matters raised by the complainant of having a condition that affects her joints, in particular her wrists, wearing wrist supports when lifting stock and struggling with the weight of boxes were not in fact looked into or actioned by the respondent.  Two members of the health and safety committee met with sales representatives in the summer of 2022 and discussed workload and access to schools.  I note Mr MacCurtain’s evidence that the feedback from this meeting was that the complainant requested for more books to be posted out.  This was not also followed up in any individualised manner with the complainant.  

It is my understanding that the complainant continued to carry out the role of sales representative in accordance with the respondent’s sales model for the remainder of 2022.

The respondent referred the complainant for occupational assessment in January 2023 following an email from the complainant of 5 January 2023 in which she advised that her joints were acting up again, her wrist pain was back, and she was awaiting a physio/occupational therapy referral.   In a report dated 19 January 2023, the occupational physician deemed the complainant medically fit to remain at work in her contracted role, and stated under the restrictions/accommodations part of the report that the complainant might benefit from restriction of heavier manual handling tasks and use of smaller boxes was suggested.  A 3kg lifting restriction was omitted in error from the physician’s original report that issued to the respondent.  Following the complainant’s referral to occupational therapy, the complainant was certified on 13 February 2023 as fit for light duties and advised to wear a left wrist splint wrist for six weeks.  The respondent spoke with the relevant occupational therapist and established that the complainant was fit to drive and carry/deliver one book at a time. 

A report from the complainant’s occupational therapist dated 14 March 2023 recommended avoidance of heavier activities, including lifting boxes of books and carrying multiple books, as this exacerbated the complainant’s symptoms of joint pain and swelling in her wrists. 

On 11 May 2023, the respondent’s Finance Director emailed the complainant to get an update on any medical appointments or reports.  It was following this email that the respondent became aware of the occupational physician’s recommendation from January 2023 of the 3kg lifting restriction.  It is unclear whether in fact the respondent had access from 7 February 2023 to an amended occupational health report referencing the 3kg restriction.  I have noted that the complainant referenced the 3kg restriction recommendation in an email of 24 March 2023, however, on the evidence, I find that this reference was overlooked by the Finance Director due to his circumstances at the time.  I further find that Mr Wright’s evidence under cross-examination that he was aware from Mr MacCurtain going into the meeting of 5 April 2023 of the 3kg weight restriction more likely to have been a reference to a restriction from the occupational therapy recommendations.  Ultimately however I do not consider this to be material to my analysis of the respondent’s assessment of the nature and extent of the complainant’s disability.  It was clear to both parties from the occupational therapy assessment in or around February 2023 that the lifting restriction was to carrying one book.

The complainant provided an updated occupational therapy report following review on 29 May 2023.  That report recommended to support work ability that the complainant continue to avoid heavier manual handling tasks and not lift weight greater than 3kg.  The occupational therapist included in this report her contact details should a work site assessment be required to further assess work tasks or environment.

The final occupational health report dated 12 June 2023 was further to a referral by the respondent.  The specific reason for assessment was detailed as a follow up to the January 2023 appointment, including whether there was an ongoing need for the 3kg manual handling restriction.  The occupational physician assessed the complainant as fit to continue in her current role but with manual handling restrictions and fit to drive for work.  The physician recommended extension of the manual handling restriction of 3kg for at least a further period of 6 months and a guarded prognosis for a complete resolution of the SLE complications experienced by the complainant.

I note the evidence of the respondent’s Sales Manager and Finance Director that the first time they realised the effects of SLE on the complainant was at the WRC hearing.

The respondent did not avail of the opportunity to undertake a work site assessment.  In my view, this was a missed opportunity for the respondent to assess the complainant’s capability with accommodations.  It is moreover questionable in circumstances where the respondent maintained its focus was on health and safety issues, and where it concluded that it was no longer possible from a health and safety perspective for the complainant to continue in her role.    The respondent’s conclusion was in respect of the role as it stood and without an evaluation of the complainant’s needs to undertake the role.  The evidence of the respondent’s management was consistent in relation to the situation involving the complainant being a medical situation and decisions taken having been grounded on the medical evidence, health and safety and avoidance of risk to the complainant.  I am not satisfied this conclusion was reasonable or proportionate in circumstances where a work site assessment was not undertaken. 

The medical evidence did not in fact state that the complainant could not undertake the role or that continuing to lift would cause the complainant long-term damage.  It is clear to me that the respondent relied on comments made by the complainant in the April 2023 meeting, in response to a question about whether she would ever be in a position to go back to lifting and characterised the complainant’s comments as medical evidence.  I further do not consider this to have been either fair or appropriate in the circumstances in which the April 2023 meeting took place. 

Consideration of appropriate measures

It was submitted on behalf of the respondent that the height of the complainant’s case was that the respondent did not allow work to be done in a way that was contrary to its sales model, however, in my view, this issue is germane to an assessment of the respondent’s actions under section 16(3) of the Acts. 

Much emphasis was placed by the respondent on its in-person, product-in-hand and sample provision sales model and its competitive advantage.  The posting measure raised by the complainant in the April 2023 meeting and subsequent to the meeting of 20 June 2023 was ruled out by the respondent because it did not align with its sales model.  Demonstrating books digitally was ruled out for the same reason. 

I have very carefully considered the respondent’s position on its sales model and section 16 of the Acts and am not satisfied that the nature of the respondent’s sales model relieves the respondent of its duty to proactively assess the factual circumstances in an individualised manner.  This is so because of the Supreme Court’s interpretation of section 16, and in particular the premise set out in section 16(1) and the effect of section 16(3) in carving out an exception.  As per MacMenamin J.on the effect of section 16(3):-

“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 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; …”

Section 16(4) on appropriate measures involves adapting the employer’s place of business, where needed in a particular case.  Adaptation is not limited to physical adaptation; the CJEU has held that appropriate measures may be physical, organisational and/or educational.  As acknowledged by MacMenamin J in Nano Nagle, the limitation on “appropriate measures” is only that of disproportionality.  I find therefore that the duty to provide effective and practical measures where needed to adapt the place of business to the disability concerned may include adaptation of the way or conditions under which the duties attached to a position are to be performed, in this case the respondent’s sales model, subject to it not imposing a disproportionate burden on the employer. 

The respondent’s position was that it considered or suggested various reasonable accommodations that could be provided and that the impact on its business of proposed accommodations would impose a massive burden.  However, I am not satisfied that the evidence demonstrated proper consideration and exploration of accommodations or that the measures would impose a massive burden for the following reasons. 

Measures suggested by the respondent in February 2023 further to the occupational health report of January 2023 did not progress at the time because, on the respondent’s account, they were overtaken by an occupational therapy report dated 13 February 2023 which certified the complainant fit for light duties and the wearing of a wrist splint.

There were no accommodations put forward by the respondent at the meeting in April 2023.  It was common case that the February 2023 measures were not discussed at the April 2023 meeting.  This was a meeting requested by the complainant further to her occupational therapist’s report of March 2023.  Ms Glennon’s evidence was that the meeting was to hear the complainant’s views in circumstances where the complainant was doing zero lifting at the time.  This was further to the measure put in place by the respondent of an assistant and driver for the complainant.  I note however that the relevant occupational therapy recommendation concerned manual handling restriction and the complainant’s request for a meeting was to discuss how manual handling restriction would be managed in the long term.  It is significant that this was the only meeting between management and the complainant on the matter before the meeting of 20 June at which the complainant was told the role of educational sales representative was no longer viable for her.  The complainant asked about posting books to school and Mr Wright, in response, outlined the respondent’s sales model and how the respondent would be at a disadvantage if it was to rely on posting samples to teachers. 

In my view, the respondent did not consider the complainant’s posting enquiry in April 2023 in an individualised manner and as a measure or form of accommodation to enable the complainant to undertake her role.  I am supported in this regard by Mr MacCurtain’s evidence in relation to the complainant’s request to have more books posted out in the summer of 2022 which was that whilst it was considered, it was not the way the respondent does sales.  

I consider the response to the posting measure in April 2023 to have been a stock response, ruled out on the basis that it did not align with the respondent’s sales model.  The oral evidence of the respondent’s witnesses was consistent on there being no possible workaround to the respondent’s sales model other than one that would put the respondent at a distinct disadvantage in the market.  Evidence of disadvantage was general in nature and referenced historical data on the effect of posting on sales during Covid-19, albeit that that data was not looked at in this process concerning the complainant.  The evidence of the respondent’s witnesses was consistent on the point that they held this knowledge of disadvantage from posting not having worked previously.  I do not question the experience of management in the respondent organisation and their expertise in determining the respondent’s core sales model. I do however have reservations about the respondent’s testing or evaluation of that model in the context of its duty to provide reasonable accommodation for the complainant’s disability and making decisions in this regard based on historical data.  This included data generated from the exceptional circumstances of the pandemic when schools were operating with remote learning, social distancing and limited or curtailed activities and interactions, and data generated from other sales representatives in other regions.  There was no evidence before me of the respondent having evaluated how the arrangement to post samples to schools in advance of the complainant calling, an arrangement that was in place in or around the end of April 2023, worked and how the complainant fared in terms of sales. 

Submissions and evidence that posting books would have serious implications for and a negative impact on the respondent’s sales levels, render it uncompetitive and to lose business and market share was generalised and unsupported.  There was no individualised consideration or analysis done, whether by testing this on a temporary basis for the complainant, or otherwise.  Wholesale posting in lieu of personal contact was not the accommodation suggested nor was the suggestion to upend the sales model for the entire sales team.  The respondent’s evidence was that personal contact was key however, on none of the measures put forward, would there have been no personal contact.  The respondent did not contemplate affording the complainant different or more favourable treatment.    Section 16 requires an individualised approach and on the evidence before me I am not satisfied of such an approach.

Regarding the February 2023 measures, I am satisfied that any consideration of these by the respondent after February 2023 was limited, fragmented and not properly explored as options that would enable the complainant in the role.    Ms Glennon recalled discussion on the box trolley after the April 2023 meeting but was unaware of Mr Wright’s research of the box trolley option.  It was unclear when Mr Wright looked into this measure but his evidence was that he recalled it loosely being talked about but that it was an unrealistic option having regard to accessibility issues and trolley weight.  There was no involvement with medical professionals on the respondent’s reservations about the complainant using a box trolley or the implications of continuous, repetitive lifting which I note was a factor for Ms Glennon.  It is clear that the complainant was unaware and not involved in any discussions on the part of the respondent regarding a box trolley or other suggestions.  Mr MacCurtain’s evidence was that when the 3kg restriction became an issue at the end of May, the box trolley and other February 2023 suggestions were ruled out and closed off as options.  I note that this ruling out occurred when the January 2023 occupational health report omission came to the respondent’s attention, and before the final occupational health report dated 12 June 2023.  Mr MacCurtain’s evidence was that the purpose of the 20 June meeting was to confirm his decision, based on the medical reports, that the complainant could not continue in her sales representative role.    The timeframe for consideration of these measures was therefore limited in circumstances where Mr MacCurtain was catching up with the complainant on 11 May 2023, following his return to work, and where the February 2023 suggestions were closed off at the end of May.  Mr MacCurtain and Ms Glennon were in contact during the month of May regarding the complainant’s suitability for the alternative role which was considered by the respondent to be a solution.  It is my view that once the alternative role was mooted, any consideration of measures for the complainant in the role of sales representative did not occur or progress.  It was clear from the evidence that the respondent did not intend for there to be discussion or consideration of accommodations or the complainant’s medical condition at the meeting on 20 June or thereafter.

It was common case that the complainant raised the possibility of funding for disability supports in April 2023.  Ms Glennon and Mr Wright did not explore this possibility and Mr MacCurtain’s evidence was that from online research, the available funding was for structural measures in fixed places of work.  It was unclear when Mr MacCurtain did this research however based on the previously mentioned facts, it follows that it was done sometime in May 2023.  There was no evidence of the online information having been the subject of any further enquiry by the respondent.  This means that it is unclear what, if any, public funding was available by way of support for reasonable accommodation for the complainant.

Turning to the offer to the complainant of the alternative role and the respondent’s position that it provided the perfect accommodation for the complainant’s needs, I have very carefully considered the question as to whether the offer of the alternative role on the same remuneration package constituted reasonable accommodation within the meaning of section 16 of the Acts.  The complainant wanted to remain in the role of educational sales representative with reasonable accommodation.  This was conveyed by the complainant at, and subsequent to, the meeting of 20 June and clearly expressed in correspondence on behalf of the complainant dated 13 July 2023 which included why the complainant considered the alternative role, as presented, to be unsuitable.

The respondent in this case decided that the complainant was not fully competent and fully capable of undertaking the duties attached to the role of educational sales representative.  Section 16(1) is not free-standing; it is subject to section 16(3).  The purpose of section 16(3) is to provide “appropriate measures” toa person with a disability so to as to render the person fully competent and capable of undertaking any duties.    The respondent’s offer of an alternative role to the complainant may well constitute an appropriate measure where it is not a disproportionate burden however, as I see it, the difficulty with it being so in this case is that the offer was made as a solution to the respondent’s decision that the complainant could not undertake the duties of educational sales representative.  If the offer was to constitute reasonable accommodation within the meaning of section 16(3), it would, in my view, be to the detriment of equality and ignore the fact that section 16(3) carves out an exception to section 16(1) which expressly refers to retaining a person in a position.    

The preamble to the CRPD recognises “the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices”.  Article 27 gives effect to the foregoing in recognising that the right of persons with disabilities to work and employment equality includes “the right to the opportunity to gain a living by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities” alongside ensuring that reasonable accommodation is provided to persons with disabilities in the workplace.    The purpose of reasonable accommodation is to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms. 

The CJEU in HR Rail (C-485/20)ruled that reassignment to another job may constitute an appropriate measure provided it does not impose a disproportionate burden on the employer.  It is clear from the judgment that reasonable accommodation must be assessed on the facts of the case and the employee must have the necessary competence, capability and availability for the alternative role.   The question referred by the national court in HR Rail was whether Article 5 of Directive 2000/78 (on reasonable accommodation) must be interpreted as meaning that where a worker is no longer capable due to their disability, an employer is required to assign the worker to another position for which they have the requisite skills, capabilities and availability, where such a measure would not impose a disproportionate burden.   

A material difference on the facts of this case is that it was not established that the complainant was incapable of remaining in the role of educational sales representative.  The medical reports did not make such an assessment; the last occupational health report assessed the complainant as fit to continue in her role but with manual handling restrictions.  There was no medical opinion that the complainant had become permanently unfit to undertake the role of educational sales representative.  

I am also not satisfied, based on HR Rail, that reassignment can operate as an appropriate measure so as to exclude the requirement on an employer to consider other possible adaptation measures to enable an employee to participate fully and effectively in employment on an equal basis with other workers where the employee has not been determined incapable.  In this regard, I note at paragraph 41 of the CJEU’s judgment its concurrence with the Advocate General’s opinion on the meaning of adaptation of the workplace:-

“… that that adaptation should be made as a matter of priority having regard to other measures which make it possible to adapt the working environment for the disabled person in order to enable him or her to participate fully and effectively in professional life on an equal basis with other workers.  Those measures may include the implementation by the employer of measures which make it possible for that person to remain in employment, such as reassignment to another position.”

As noted by the Advocate General in his Opinion, “as a matter of priority and as far as possible, the employer must accommodate the job which the worker had prior to the onset of the disability” with the objective of enabling full and effective participation for a person with a disability in professional life on an equal basis with other workers.

Based on the foregoing, it is my view that reassignment may be an appropriate measure in the context of reasonable accommodation but not to the detriment of equality and rights under the CRPD.  Reassignment may be an appropriate measure in the measures an employer has regard to so that an employee remains in employment.  In this case, I am not satisfied the respondent could properly conclude that the complainant was incapable of undertaking the role of educational sales representative and that the alternative role was an appropriate measure where it did not properly consider appropriate measures to enable the complainant in her role.   Furthermore, where an employee must also have the necessary competence, capability and availability for reassignment, it would appear to me that some form of consultation would be necessary in relation to determining it to be an appropriate measure.   

I consider this disability discrimination case to be a regrettable consequence of a lack of consultation with the complainant in relation to appropriate measures and the respondent’s assessment that the educational sales representative role was no longer viable for the complainant.  Acknowledging that Nano Nagle is not authority for a mandatory duty of consultation when it comes to reasonable accommodation, the Supreme Court did note the importance attached to fair procedures in this jurisdiction where employment is at stake and stated that “even as a counsel of prudence, a wise employer will provide meaningful participation in vindication of his or her duty under the Act.” 

There was one meeting with the complainant in April 2023 regarding her role and the medical position, which was held at the request of the complainant.  The complainant was not informed in advance that the purpose of the meeting was to hear from the complainant about her solutions and suggestions for undertaking the role in the long-term.  There was no indication given to the complainant in advance of the second meeting in June 2023 of the respondent’s assessment of the medical evidence and decision that the role of sales representative for the complainant was no longer viable.  

It is unrealistic for all communications in the workplace between an employer and employee to be documented and recorded and I accept the respondent’s evidence that the complainant’s health and her role was discussed outside of formal management meetings.  However, the evidence does not support there having been a process of engagement with the complainant, or a process aimed at finding a mutually satisfactory resolution to the issues arising from her disability, as described by the respondent.   The statement that the medical reports and the complainant’s job were discussed with the complainant over a six-month period of engagement is not borne out by the evidence.  The evidence does not support the respondent having worked closely with the complainant over a number of months to find a mutually satisfactory resolution to the issues arising from her medical condition.  This would have involved engaging with the complainant on what appropriate measures might look like.  This did not happen and nor was the complainant involved in any process of deliberation.

 In terms of the complainant being fully competent of undertaking duties on the provision of appropriate measures, I note that the complainant undertook the duties attached to her role with accommodation in the form of an assistant and driver from March 2023 until June 2023, albeit that this was not an accommodation that was satisfactory to either party in the long term. I further note that the complainant undertook the role with a posting accommodation for a time in April 2023 and that the respondent undertakes posting to schools in certain sales territories.  I find that there is no basis for a conclusion that the complainant was not capable of undertaking the duties of the role had reasonable accommodation been provided where there was no work assessment undertaken and where appropriate measures were not properly assessed.  Adopting the reasoning of the Labour Court in Roberts v United Parcel Service of Ireland Ltd [EDA2136], if the respondent had concerns about the long-term viability of the role with manual handling accommodations from either a competence or a business and impact on sales perspective, it was open to the respondent to trial such an approach on a time limited basis.  The respondent considered the complainant to be a very successful sales representative and it was contemplated by the respondent at the time of the April 2023 meeting that the assistant and driver measure could continue until October time.  It therefore would have been reasonable and proportionate, in my view, for the respondent to have informed itself by way of a work site assessment and to have trialled manual handling accommodations for the complainant.

In short, I am not satisfied the respondent had a clear understanding of the needs of the complainant related to her disability and that it explored appropriate measures for those needs.  Had appropriate measures been properly identified and evaluated or tested, the respondent may well have established them to constitute a disproportionate burden.

Finally, for completeness, I cannot find support for the submission on behalf of the complainant that an objective element in reasonable accommodation warranted hearing from the complainant’s current employer as to the industry standard.  Leaving to one side the respondent’s objection as to how the current employer’s evidence could be that of an industry standard, section 16(3) is concerned with the obligations of the employer of a person with a disability and that employer’s taking of appropriate measures or provision of reasonable accommodation to remove or mitigate against barriers encountered by the person.  Reasonable accommodation relates to effective and practical measures “to adapt the employer’s place of business to the disability concerned”.  An employer’s actions and decisions are assessed objectively by reference to the legal framework and the concept of reasonable accommodation is determined by reference to the particular employment context.

Conclusion

I find that the respondent failed to comply with section 16 of the Acts regarding the provision of reasonable accommodation for the complainant’s disability.  As a result of this failure, I find that the complainant was discriminated against on grounds of disability.

Discrimination in conditions of employment/other

Section 6(1) of the Acts in relevant part provides that discrimination shall be taken to occur where:-

“a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this 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,”

Section 8 of the Acts prohibits discrimination in the specific area of conditions of employment and section 8(6) 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 conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one –

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

(b)    the same working conditions, and

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

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

There was a significant focus in the evidence tendered on behalf of the complainant on the concept of reasonable accommodation.  The complainant confirmed under cross-examination that the complaint of discrimination in conditions of employment was in relation to the respondent’s failure to provide reasonable accommodation.

Evidence in relation to the termination of the complainant’s employment and a separate claim of discriminatory dismissal are addressed under ADJ-00048355. 

The evidence presented did not demonstrate a prima facie case of less favourable treatment of the complainant in relation to conditions of employment, or otherwise, on grounds of disability than another person is, has been or would be treated in a comparable situation, separate or in addition to the previously mentioned discrimination claims.

Victimisation

In correspondence dated 13 July 2023 to the respondent, it was submitted on the complainant’s behalf that the complainant had been victimised for asserting her equality rights; that claim, referred to the WRC on the same date, is the subject of this adjudication. 

The WRC claim referred, in relevant part, to the complainant having been victimised for complaining of discrimination on the grounds of disability and seeking reasonable accommodation for her disability.

Victimisation protects employees who raise or address discrimination in the workplace from retaliatory action.  As a cause of action, it is vital in ensuring the effectiveness of the prohibitions and protections under the Acts.

Section 74(2) defines victimisation as occurring where:-

 “… dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-

(a)    a complaint of discrimination made by the employee to the employer,

(b)    any proceedings by a complainant,

(c)     an employee having represented or otherwise supported a complainant,

(d)    the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e)    an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f)      an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g)    an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

I am not satisfied that the within complaint can be grounded on the complaints referred to the WRC in July 2023 and the respondent’s subsequent internal review or appeals process, as per the written submissions on behalf of the complainant regarding the relevant law on victimisation. 

It was submitted by Mr Kinsley, on behalf of the complainant, that this victimisation complaint relates to the respondent’s process in response to the complainant having raised issues in relation to her health.

I have very carefully considered the evidence relevant to the scope of this complaint of victimisation, up to an including the respondent’s correspondence dated 30 June 2023 in response to the complainant’s communication dated 23 June 2023.

I am satisfied that the evidence concerning process within the scope of this complaint pertained to how the respondent addressed the matter of the complainant’s disability and capability to carry out the role of sales representative, and to the taking of the decision to terminate the complainant’s employment. 

There are three components which must be present for a claim of victimisation under the Acts to be made out:-

          i.            the complainant must have undertaken a protected act of a type referred to at paragraphs (a)-(g) of section 74(2),

         ii.            the complainant must have been subjected to adverse treatment by their employer, and

       iii.            the adverse treatment must be in reaction to the protected act having been taken by the complainant.

In the first instance, issues raised by the complainant concerning the physicality of the role, health and safety and her health do not, in those particular terms, constitute a protected act of the type referred to in section 74(2).  The protected acts concern the enforcement of rights under the Acts, including making complaints of discrimination and asserting equality rights.  I have considered the complainant’s enquiry at the meeting of 5 April 2023 about posting books to school and am not satisfied that such enquiry constitutes a protected act within the meaning of section 74(2).  However, I find that the complainant’s emails of 21 and 23 June 2023 went further and were not in the nature of an enquiry.  These emails sought to assert employment rights and to challenge the respondent’s position, including that the sales representative role was no longer viable for the complainant and on accommodations, and referred to the medical reports.  The complainant concluded the email of 23 June by stating that she wished to lodge an official complaint.  I am satisfied, based on the foregoing, that these emails were protected acts that came within the scope of section 74(2)(a) of the Acts.

The complainant felt there was a complete shift between the 20 June meeting and the respondent’s correspondence dated 30 June 2023.  The complainant felt that the shift by the respondent was because she had raised health and safety issues.  The complainant had the right to request the things outlined in her email of 23 June 2023.

In terms of components (ii) and (iii) detailed above, it is clear that there must have been adverse treatment of the complainant which occurred ‘as a reaction’ to a complaint or other protected act.  

I am not satisfied that there was adverse treatment of the complainant by the respondent within the cognisable period of this complaint for the following reasons.  The evidence established that the respondent took the decision that the role of sales representative was not viable for the complainant before the meeting on 20 June 2023.  The precise implications of this decision were not clearly addressed with the complainant in the meeting on 20 June.  The implications are clearly addressed and set out in the respondent’s email dated 22 June 2023 and letter dated 30 June 2023, along with the respondent’s position on matters raised by the complainant in her emails of 21 June and 23 June.

Whilst the complainant felt there was a complete shift by the respondent between the 20 June meeting and its correspondence dated 30 June 2023, I am satisfied that the respondent’s communications were in direct response to the complainant’s emails.  The respondent was entitled to respond to matters raised by the complainant and to set out its position in relation to the complainant’s role.  I am satisfied that the implications for the complainant continuing in the sales representative role came into play when the respondent took the decision following receipt of the occupational health report dated 12 June 2023 that the role was no longer viable for the complainant.  The respondent’s failure to address the implications clearly and, in my view, properly, with the complainant on 20 June was because of its focus on the alternative role for the complainant.  I do accept the respondent’s bona fides in wanting to retain the complainant in employment and the value attributed by it to the complainant’s skillset.  The respondent did, in its correspondence dated 30 June 2023, put a timeframe within which the complainant was required to express an interest in the alternative.   I find that the timeframe tallies with the respondent’s position in the meeting of 20 June on timeframes for consideration and the expected commencement date of the alternative role and cannot be construed as adverse treatment of the complainant in reaction to the complainant’s emails.

On balance, I am not satisfied that the respondent’s communications and process in the cognisable period constituted adverse treatment of the complainant by the respondent within the meaning of section 74(2).  Accordingly, I find the complainant was not victimised by the respondent in contravention of the Acts.

Redress

In respect of my finding that the complainant was discriminated against on grounds of disability in relation to reasonable accommodation, I consider an award of compensation to be appropriate in the circumstances of this case.

I accept the complainant’s commitment to her sales representative role with the respondent, the frustration she experienced with the measure put in place by the respondent from March to June 2023 and sense of exclusion in the workplace on matters related to her disability in 2023. 

It was agreed between the parties that the complainant’s annual salary at the material time in employment was €58,000 gross per annum.

In accordance with section 82(1)(c) of the Acts, I assess the effects of discrimination as meriting an award compensation of €29,000, equivalent to six months’ pay.  It was clear from the complainant’s evidence that she was passionate about her job as sales representative and was devastated by the respondent’s decision that she was unable to fulfil the essential duties of the role.  The complainant found communications from the respondent regarding her medical condition and its position to be threatening and hurtful.  The complainant was certified unfit by her GP due to work related stress from 3 July 2023 until her employment with the respondent was terminated.

The award of compensation is not in respect of remuneration, including arrears of remuneration.  It is an award for the effects of disability discrimination.

I find that there was a contravention of the Acts in respect of reasonable accommodation and order compensation, payable by the respondent to the complainant, in the sum of €29,000 for this discrimination on grounds of disability.

I find that the claim of victimisation is not well founded.

Disability – Discrimination - Reasonable accommodation – Offer of alternative role - Conditions of employment – Victimisation