Complainant

Respondent

Parties

Martyn  Reynolds

TLI Group Limited

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Ms Sinead Cockram The HR Suite

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00065171-001

02/08/2024

This matter came before the Workplace Relations Commission dated 02/08/2024 as a complaint submitted under section 77 of the Employment Equality Act, 1998.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 07/11/2024.  A further hearing was a scheduled to take place on 31/01/2025.    

The Complainant at all material times was employed as a Cable Jointer and he received safety approval known as PICW (Person in Charge of Work) in June 2023.  The Complainant was in receipt of a salary of €1,438.32 gross per week for which he worked 39 hours per week.  The Complainant was employed by the Respondent from 22/08/2022 until he resigned his employment on 05/07/2024.   The Respondent is a critical utility infrastructure provider operating extensively within the utilities sector in Ireland, Northern Ireland and the UK. 

CA-00065171-001

The Complainant claims that he was discriminated against on grounds of disability and that the Respondent failed to provide reasonable accommodation.  The Complainant claims the most recent date of discrimination 07/06/2024.   

The Respondent refutes any claims of discrimination and asserts that all reasonable steps were taken to accommodate the Complainant in light of his medical condition. 

Written factual and legal submissions were provided by the parties and are summarised hereunder. 

CA-00065171-001

Overview of Complainant written submission

The Complainant submits he was employed by the Respondent as a Cable Jointer in August 2022, which involved installing new electrical installation works on behalf of ESB.

In August 2023 the Complainant submits he was promoted to UG PICW (Under Ground – Person in Charge of Works), he was asked to help organise and supervise substation upgrade works under an ESB framework agreement.

The Complainant submits between August 2023 and April 2024 his role involved supervising the replacement of ESB’s MV & LV electrical network equipment, this included substation surveys, attending TLI & ESB meetings, commissioning equipment, setting up TLI stores, arranging outages, submitting & receiving safety documents, supervising staff on new connections works and supervising electrical replacement works.

The Complainant submits in February 2024 he was admitted to A&E for two days and diagnosed with Acute Pericarditis, an inflammation of the membrane surrounding the heart.   The Complainant submits he informed his employer immediately and provided, diagnosis, prescription and follow-up out-patient appointment details.

The Complainant submits in April 2024, he was advised by the Cardiologist to take 2 weeks away from work to assist with his recovery as there had been no improvement (or worsening) in his condition.   The Complainant submits he had already advised HR that there may be a requirement to take additional time. 

The Complainant submits in April, during his sick leave, he raised a grievance around his treatment at the Respondent company.   The Complainant submits he had been made to remove heavy tools and equipment from his large company van despite having submitted a letter from the Cardiology Department stating he needed time away from work to aid recovery.

The Complainant submits on his return in May 2024 his employer had changed his role from UG PICW to New Connections where he was now required to carry out heavy & strenuous activities.   The Complainant submits this was done without discussion, consultation or any consideration to my on-going heart condition.

The Complainant submits on 28th May 2024 his GP issued him with a letter, stating that he should avoid heavy & strenuous activities for a period of 12 months.    A subsequent Occupational Health Assessment, carried out on the 30th May 2024, also suggested avoiding heavy & strenuous activities with a review period of 3 months.

The Complainant submits the Cardiologist, his GP and the Occupational Health Assessment all suggested he could return to work while avoiding heavy & strenuous activities.  The Complainant submits after discussions with his GP & Occupational Health he was given the impression that light duties for a limited period was being suggested.

The Complainant submits he was also not advised to stop working by the Cardiologist.  The Complainant submits that on receiving his Occupational Health Assessment his employer immediately suspended him from work.   The Complainant submits that on the 7th June 2024 he received a letter from the Respondent stating that they had been unable to identify a suitable alternative role, and he was to be placed on sick leave effective from 10th June 2024.

The Complainant submits he was invited to the Respondent head office on Monday 17th June 2024 to discuss a resolution but there was no attempt by the Respondent to discuss ways of supporting his return in his existing role.   The Complainant submits that during the meeting he pointed out that his UG PICW role hadn’t included any heavy or strenuous works until the role change following sick leave in May 2024.

The Complainant submits that all his suggestions around returning to work in his existing role were dismissed.  The Complainant submits he suggested a return to his previous role, replacing Magnefix as UG PICW.   The Complainant submits he asked to oversee Minipillar Shutdowns as UG PICW.  The Complainant submits he suggested overseeing MVSS, a cable jointing contractor.  The Complainant submits instead, he was offered an administrative role on significantly less pay.

The Complainant submits he refused to provide a sick certificate as he believed he was fit to work, the Respondent eventually reduced his pay to that equivalent of sick pay on 18th May 2024 without a sick certificate. 

The Complainant submits at no point following his promotion in August 2023 was he given details regarding the roles or responsibilities of the UG PICW, either written or verbally.  The Complainant submits his contract states: (a) Your responsibilities will be detailed to you on an on-going basis by management. These duties will be in line with your position. (b) Duties and responsibilities may change from time to time and it is a condition of your employment that you cooperate with any changes that are made. There is no reference to any specific roles, responsibilities, tasks or duties of my job, no reference to MV or LV cable jointing.

The Complainant submits that at no point has he been provided with specific roles or responsibilities by management for the UG PICW role.  The Complainant submits his contract also states that he will be notified within 1 month of any changes made, again this never happened.

The Complainant submits he never received a copy of his supervisor contract or associated roles & responsibilities.

Facts of Dispute: Between August 2023 & April 2024 the Complainant submits he did not carry out any heavy or strenuous cable jointing activities within his UG PICW role.  The Complainant submits during the Supervision of Electrical replacement works, attended by ESB, he was never asked to carry out any heavy or strenuous activities, either by the Respondent or ESB.   The Complainant submits he was never told this would change going forward.  The Complainant submits between his A&E visit in February 2024 and his 2 weeks sick leave in April 2024 he continued to work normally within the UG PICW role without any complaints or concerns from his employer.

The Complainant submits following 2 weeks sick leave in April/May 2024, having submitted a letter from the Cardiology Department stating that he required 2 weeks rest, his employer moved him to New Connections.   This change was implemented without consultation and without a return-to-work meeting.

The Complainant submits he was given 2 separate electricians to work with, neither had any MV/LV Jointing experience and both were in the final stages of emigrating.   The Complainant submits he was provided hotel accommodation situated almost 2hrs from site.

The Complainant submits in the 2 weeks following his sick leave in May 2024 he completed more MV & LV Cable Jointing work than he had in the previous 8 months.  The Complainant submits that during his 2 weeks sick leave his role of overseeing ESB’s substation upgrade works was given to another Supervisor.

The Complainant submits the Respondent repeatedly refused reasonable adjustments to allow him to return in his existing role.  The Complainant submits there have been no discussions with the Respondent around reallocating elements of his role to allow him to return to work.

The Complainant submits that on 17th June 2024, he sent the Respondent an IHREC Schedule 1 form and he explained that he disagreed with his recent treatment and that refusing to offer reasonable adjustments amounted to disability discrimination.

The Complainant submits the Respondent again refused reasonable accommodation in the response to the IHREC form.  The Complainant submits HR wrongly stated that he will remain on sick leave as per the Occupational Health Doctors recommendation and on the recommendation of his GP. 

The Complainant submits that in his UG PICW role he doesn’t believe he was carrying out or being expected to carry out all elements of the job description the Respondent sent to EHA prior to his Occupational Health Assessment.

The Complainant submits the Respondent is a large company, providing support to allow him avoidan element of his role for a limited period would have been well within the Respondent’s abilities and with limited cost implications. 

Summary of Legal Argument:

The Complainant submits that Pericarditis has limited his physical abilities both at work and socially, he has been advised to avoid all sport and refrain from heavy and strenuous physical activities until his condition improves. The Complainant submits he believes Chronic, long lasting or reoccurring Pericarditis would satisfy the Employment Equality Act 1998 definition of disability as defined in section 2 of the Act.

The Complainant does not believe the Respondent can show they have complied with section 16 of the Employment Equality Act 1998.

The Complainant submits section 16 of the Employment Equality Act 1998 states that an employer should provide special treatment to allow persons with disabilities to remain in their existing role, he understands this to mean elements of a particular role could be redistributed or reassigned to allow a person with a disability to continue to work.

The Complainant submits at no point has the Respondent ever discussed redistribution or reallocation of tasks or duties to allow him to continue in his existing role.

The Complainant submits that while there appears to be no legal requirement for employers to include the employee in the decision-making process, he understands its generally considered good practice for employers to engage with employees when considering reasonable accommodation.

Law relied upon by the Complainant

Section 16 of the Employment Equality Act, 1998

Article 27 of the Contravention on the Rights of Persons with Disabilities

A Complainant v Bus Éireann DEC-E2003- 004 

Nano Nagle v. Daly [2019] IESC 63

Summary of direct evidence of Complainant on affirmation

The Complainant submits he was admitted to Tallaght hospital from the Maldron Hotel on 27 February and he was in A and E for two days. 

The Complainant submits that when he was released from cardiology outpatients he messaged his line manager.  The Complainant submits he had to unload his equipment from the van.  The Complainant submits there was a disciplinary hearing with [redacted] that he needed to attend. 

The Complainant submits he commenced sick leave on Monday 22 April and he returned on 13 May.  The Complainant submits he raised a grievance on 10 May because he had to move all his stuff from the van by himself.  The Complainant submits he offered to take the van home and have all his stuff taken out at home but this was not acceptable as they wanted the van back there and then. 

The Complainant submits he took two weeks sick leave and he requested one week annual leave – four days it was a bank holiday week and that was rescinded.  The Complainant submits he wasn’t paid for the two days sick leave.  The Complainant submits he has questions around the occupational health report and questions around the role profile sent to occupational health. 

The Complainant submits he was not undertaking any jointing activities and he submits that occ health cannot access capability if they are given the wrong information.  The Complainant submits it would be accurate if he were doing those tasks but he wasn’t and that occ health weren’t given the correct information.  The Complainant submits that after his pay rise on 11 September 2023 he wasn’t undertaking any of those jobs. 

The Complainant submits he was invited to attend an informal meeting on 11 June and reasonable alternatives was the wording used not reasonable accommodation.  The Complainant submits there was no effort to accommodate him or to provide reasonable accommodation.  The Complainant submits he put forward suggestions and all that came back were alternative roles. 

Regarding the meeting on 17 June the Complainant submits he repeatedly asked for the minutes and they took a month and it was very difficult to recap the individual points raised.  The Complainant submits he applied for a new role on 20 June.  The Complainant submits he was on extended sick pay until 18 June and then down to non-certified sick pay. 

The Complainant submits he resigned on 5 July.  The Complainant submits his role had physically changed and he was no longer being asked to supervise for two weeks.  The Complainant submits the Respondent intentionally moved him to a job that involved more strenuous work.  The Complainant submits that the Respondent had the cardiology advice in April which they completely ignored and being told to empty the van knowing what they knew. 

Summary of cross-examination of Complainant

The Complainant is asked about his understanding of his role in terms of tasks and he submits that after the pay rise in September his role did not involve strenuous activity.  The Complainant is asked to talk through his communication with John Kearney (hereafter JK) and makes reference to the series of WhatsApp texts that took place over two days namely 27/28 February transcripts of which are exhibited in the Respondent submissions.  It is put to the Complainant that he has introduced new evidence today in that he was on morphine despite stating in one of his messages to JK that he had been discharged with a prescription for anti-inflammatory and Ibuprofen. 

The Complainant accepts that the information messaged by the Complainant to JK was the only information available to JK on the day.  The Complainant submits he went back to the hotel from the hospital, and he returned to work on 29 February and he didn’t undertake anything physical.  The Complainant is asked when he notified the Respondent of the restrictions to which he replies he emailed a list of medications and advised that he would be for a medical review in six weeks. 

It is put the Complainant that the discharge note provides for over-the-counter medication. 

The Complainant is asked if he finds it reasonable that the Respondent took him at his word at the time and did not question it further to which the Complainant responds the information should have been passed to HR and he would have expected his manager to provide the information to HR.

The Complainant is asked why he returned to work immediately to which he replies there was nothing in his role at that time that he’d be doing anything physical.  The Complainant submits that in his supervisor role he was not asked to do anything strenuous.  The Complainant is asked if he is aware of his duty of care to notify his employer to which he replies he told the doctor he was a supervisor and that his (the doctor’s) words to him were “take it easy.”

The Complainant submits that since September he has been supervising and when asked if he had formally asked for any accommodations at this point he responds no.  When asked when he officially notified the Respondent he submits he emailed HR the confirmed diagnosis.  When asked about the conversation that took place with JK in the Maldron the Complainant submits he wanted to add on bits to his grievance. 

When asked if he can confirm that HR advised him of his option to raise another grievance he responds that yes he believes she did say this and that he would have to do a separate grievance.

The Complainant is asked if he submitted a letter or anything that provided his diagnosis and notification of restrictions to which he responds they put him on a site where he was the only person that could do the strenuous work.  The Complainant is asked if he had requested any accommodation to which he replied they knew that when they made him do that job.

The Complainant submits they moved him to a more physically demanding role and put him back in the role he had before he became supervisor in September with a significant pay increase. 

The Complainant is asked if as part of his role as supervisor he would have to step up to which he replies there is nothing there that says he would have to do jointing.  It is put to the Complainant that he has stated that the role that was shared with occ health is not his role and if he had raised this at the time to which he replies no. 

The Complainant is asked if he accepts that it was reasonable for the Respondent to act on the information available to which the Complainant responds the information provided to occ health was inaccurate and he couldn’t raise it as he didn’t have the occ health report. 

The Complainant does not accept the Respondent was trying to sort out reasonable accommodation and submits there is no evidence of that and that reasonable alternatives is all that was mentioned.  It is put to the Complaint that there is no evidence to suggest that reasonable accommodation had never been considered to which he replies he felt he was being pushed out of his job.  The Complainant is asked to confirm when he started the job search for his new job to which he responds he was on nil pay and that he got multiple job offers. 

It is put to the Complainant that it would be fair to assume that he had started making new job inquiries before the 17th June to which he replies he cannot confirm that.

Day 2 summary of recap of Complainant:

The Complainant submits he joined the Respondent as a jointer and he was promoted to PICW in September 2023 and between that time and April 2024 he did not undertake any reconnection works.  The Complainant submits in February 2024 he got pericarditis and he informed his line manager.  The Complainant submits he had a medical follow up in April 2024 and his cardiologist advised him to take two weeks sick leave which he did and one of which was paid and one for which he did not receive pay.  The Complainant submits his role had changed back to reconnections and he went to his GP due to the strenuous nature of the work.  The Complainant submits he went for occ health assessment at the end of May 2024 and the occ health report agreed with his GP that he should avoid heavy strenuous activity for three months.  The Complainant submits HR wrote to him that there were no positions for him and he went on unpaid sick leave.  There was a meeting on 17th June.  The Complainant submits he resigned on 5th July 2024. 

Summary of direct evidence of witness for the Complainant Jonathan Ross on oath (hereafter JR)

The witness submits he does not recall the Complainant undertaking any jointing activities as PICW supervisors don’t do jointing.  The witness submits the Complainant’s role did not contain any strenuous activities.  The witness submits the Complainant came back from sick leave and straight into jointing and that there was an influx of electricians not jointers.  The witness submits new connections are more physically demanding and that JK would have known this type of work was more physically demanding.  JR submits it is not the industry norm for a PICW to undertake strenuous activity.  The witness confirms that when he was out sick himself he was paid in full from July to October and the company paid his medical expenses.  

On inquiry the witness submits he had received an injury in work.    

Summary of cross-examination of JR

The witness confirms that the Complainant is his colleague and he started with the Respondent in August 2023.   The witness confirms that he had the same role as the Complainant and that he had already done the course.  The witness confirms that his contract was that of a supervisor but that he did zero supervising and did all jointing as he was brought on as a cable jointer.  When asked if he undertook strenuous activities he said yes.  The witness is asked to confirm that he never saw the Complainant undertake strenuous activities he says yes.  It is put to the Complainant that as his injury which resulted in his period of sick leave was an injury that happened in the workplace and that there would be different pathway regarding sick leave/sick pay the witness responds that he does not know anything about that.

The witness confirms he had a phased return to work after his injury and when asked if he considers the Respondent to be a good employer he replies that he had no issues with them but towards the end it did become a bit stressful. 

Summary of direct evidence of witness for the Complainant Ryan Carey on affirmation (hereafter RC)

The witness outlines that he joined the Respondent company in September and that he was there during all the time the Complainant was undertaking the PICW role.  The witness submits he never saw the Complainant do any cable jointing or any heavy or strenuous activity.  The witness confirms there was a contractor brought in for a specific job to cover the loss of one of the jointers.  The witness recalls an occasion when there too many people on the job and sat around doing nothing.  The witness confirms that new connections is more physically demanding than the PICW job.  The witness is brought through a list of tasks and he confirms the Complainant did not undertake any of those tasks.

Summary of cross-examination of RC

RC confirms he is the boyfriend of the Complainant’s daughter and that he was referred into the Respondent company by the Complainant.  The witness confirms that he was an apprentice for seven and a half months.  The witness is asked if he is qualified in those areas of the job description to say if they are strenuous or not and whether or not he has enough experience to review such a senior job description to which he replies no. 

It is put to the witness that he had ceased being part of the Complainant’s team when he returned from sick leave so he would be unable to say what duties the Complainant actually performed to which the witness replies no. 

Summary of direct evidence of witness for the Complainant Andy French on affirmation (hereafter AF)

The witness submits he was suspended by April there was a change in attitude and an unpleasant atmosphere.  The witness submits the Complainant did no physical work and lots of his tools were never used.  The witness submits he knows the Complainant since they were children and they did cabling in the UK together.  The witness submits he would know what the PICW was meant to be doing and that he had been on 95% of the jobs the Complainant had been on and he had all the tools but he ever did any of the work. The witness submits he (the Complainant) would never have been required to step in.

Complainant closing submission

The Complainant submits he believes the evidence demonstrates unfairness and he had no option but to resign.  The Complainant submits the medical evidence shows that his condition severely impacted his ability to work.  The Complainant submits both his GP and occ health said he should avoid heavy and strenuous work.  The Complainant submits the Respondent is now redefining his role and it does not include jointing etc and that any suggestion it does is contradicted by the ESB rules. 

The Complainant submits that despite ESB guidance the Respondent misrepresented it to justify its actions against him.  The Complainant submits he raised reasonable accommodation on 14th June and the decision to put him on sick leave was made within four days.  The Complainant submits the Respondent has complete disrespect for its legal obligations.  The Complainant makes reference to his colleague who was unable to perform his role (JR) and he (the Complainant) was forced onto sick leave after four days.  The Complainant submits the Respondent made no genuine effort to seek reasonable accommodation. 

CA-00065171-001

Overview of Respondent written submission

The Respondent submits the Complainant commenced employment with the Company in August 2022 in the role of Cable Jointer.    The Respondent submits that as is the norm in the utility industry for both contactors and ESB workers, experienced utility workers attain various safety approvals as they demonstrate competence in their associated roles.  The Respondent submits there are various different safety approvals that workers can attain and these are generally approvals as defined in the ESB Networks Electrical Safety Rules.  The Respondent submits in June 2023 the Complainant received his first such safety approval known as PICW (Person in charge of work).

The Respondent submits that approximately six months prior to the first medical visit to hospital on 27th February 2024 the Complainant had, on numerous occasions, sought clarification as to whether the PICW role should also carry out cable jointing.   The Respondent submits that this was clarified on numerous occasions, that as is the norm with other contractors and ESB Networks PICWs also carry out construction activities.  

The Respondent submits that following the occ health assessment which affirmed the need to avoid physically strenuous activities the Respondent reviewed the Complainant’s role and associated duties and developed a list of potential alternative roles that he could fill on an interim basis during his recovery period.

The Complainant’s line manager was made aware on 27th February 2024 that the Complainant had been admitted to hospital and he informed his line manager on 28th February that he had an infection that was being treated with over-the-counter medication and he fully expected to be returning to work the following day (29th February). 

The Respondent submits that on the Complainant’s discharge from the hospital they were not made aware of any ongoing issues or restrictions that may need to be placed on the Complainant’s role or duties at that point.  The Complainant provided the following to his line manager: “The Hospital have ruled out all serious medical conditions.  Apparently, I have an infection they are treating it with over-the-counter medication.  I fully expect to be able to return to work tomorrow.” 

The Respondent submits no medical certs were provided and the letter for follow up with cardiology as included in the Complainant’s submission was not supplied to the Respondent and therefore, they were not made aware of any medical advice in relation to the Complainant’s return to work.

The Respondent submits that on 15th April the Complainant reported for work and at 14.03 he forwarded an extract of a letter to his line manager for an appointment the following day 16th April at Tallaght Hospital Cardiology department which was facilitated by the Respondent even though the short notice presented operational challenges.  The Respondent submits the Complainant had continued in his normal duties from 28th February until 18th April before any medical information was provided to the Respondent. 

The Respondent submits the Complainant had requested two weeks annual leave which was rejected as the Complainant had insufficient accrued leave.  The Respondent submits that on 18th April the Complainant submitted a letter from his Cardiologist stating he should be provided with two weeks leave to aid his recovery from his current medical illness. 

The Respondent submits the Complainant informed his line manager that he would be taking leave for a period of two weeks from the following Monday 22nd April, and he reported in to work as normal from 17th to 19th April.  

The Respondent submits that on 19th April the Complainant was asked to return the company vehicle that he was currently driving to the Dublin office to swap it for a smaller vehicle in which he could travel home.  The Respondent submits the Complainant was requested to take any of his personal equipment from the large van and transfer it to the smaller one as other employees would be using the large van. 

The Respondent submits that on 22nd April as requested by his line manager the Complainant provided a medical cert from his GP stating he was unfit to attend work from 22/04/2024 to 06/05/2024 and then took two weeks sick leave.  The Respondent submits they were not made aware of any of the specifics of the Complainant’s medical condition nor any possible restrictions imposed on the tasks he could carry out.  The Respondent submits the Complainant returned to work on 13th May with no further update from his GP nor any indication of the requirement to avid strenuous activities. 

The Respondent submits the letter included in the Complainant’s submission was not supplied to the Respondent at this time or any time during his employment.  The Respondent submits the letter informed the Complainant’s GP that the Complainant had admitted to returning to work immediately after his discharge in February against the cardiology department’s advice that he should take a break from work.  The Respondent submits it is extremely concerning for them that the Complainant withheld such important information given the safety critical role that he held with the Respondent. 

The Respondent submits that under the Safety, Health and Welfare at Work Act, 2005 at part 2 section 13 imposes a duty on an employee to notify the employer if they become aware they are suffering from any disease or physical or mental impairment which affects their performance of work activities that could give rise to risks to the safety, health and welfare of persons at work.  The Respondent submits the duty is on the employee to protect themselves and others.  The Respondent submits the fact that the Complainant continued to perform his regular duties against the medical advice provided to him on 28th February and without communicating same to the Respondent put the Complainant’s safety and welfare as well as those working with him at risk.

Alleged changes to the Complainant’s role

The Complainant has been working on three programmes since commencement of his employment with the Respondent as set out below:

The Respondent submits the project the Complainant was assigned to on his return on 13th May was one of the smallest units of work on a New Connection project which the Respondent UG team would be asked to undertake across the three work programmes and as this work was not outage related it would not have the added time pressure associated with Network outages. 

The Respondent submits the Complainant attended a scheduled meeting on 29th May relating to a formal grievance he had raised not related to this case and at the meeting he provided the appointed grievance investigator with a letter from his GP dated 28/05/2024 stating that the Complainant had been admitted to hospital earlier in the year with pericarditis and the doctor was advising that he refrain from any strenuous activities for the next year. 

The Respondent submits the Complainant was immediately referred to Occupational Health for assessment and that this was the first indication that the Respondent was given that the Complainant was not able to perform his duties.  The Respondent submits that up to this point the Complainant was performing his normal duties and he had not communicated any concerns regarding his ability to perform those duties. 

The Respondent submits the Complainant attended Occupational Health on 30th May 2024 and the Respondent furnished the provider with a detailed outline of the Complainant’s role and duties.  The Respondent received the medical report on 31st May which provided as follows:

“In my opinion the Complainant is temporarily not fit to perform heavy physical or strenuous manual work due to his underlying condition and his persisting symptoms – as per his job description I expect that this would include some components of jointing activities, electrical installation and asset replacement tasks.  In my opinion he is fit to perform lighter manual or dexterous tasks as well as documentation or administrative roles. 

In my opinion, I expect, he will not be fit to return to his normal role for 3-6 months at least.  I expect he will be able to return to his normal duties in time.

I would recommend further review in three months time to re assess his symptoms and whether he is fit to return to his normal duties at that time.” 

The Respondent submits it was recommended that the Complainant be reassessed in three months’ time. 

Assessment of the Complainant’s role and duties

An assessment was undertaken by HR and the line manager which was in line with the advice from occupational health and it was determined the following tasks would be deemed physically strenuous:

·       Jointing activities

·       Electrical installation Works

·       Asset Replacement Works

It was determined the following activities would not be deemed physically strenuous:

·       Testing and Commissioning

·       Safety Compliance

·       Documentation

The Respondent submits that as part of the Magnefix procedure, testing can only be performed by the PICW which is the level of approval held by the Complainant.  The Respondent submits that based on the above the Complainant would not have been able to carry out the three strenuous activities as part of his PICW role. 

The Respondent submits to perform the PICW role, the following information needed to be considered:

·       PICW approval on the Magnefix programme requires the role holder to physically remove High Voltage switch caps and HV Fuses (approximately 6kgs) in addition to the application of earths to existing Magnefix switchgear.  The Respondent submits that by design these switch caps require considerable force to remove as they can be up to 40 years old and can be difficult to remove.

·       Approval issued to PICWs requires the role holder to specifically trace cables from sources to points of connection.   This would typically involve stooping down into existing cable trenches and passing a cable tie along the full route of the cable to the point of jointing for each phase of the circuit. 

The Respondent submits that due to the regulations covering PICW approval the physical elements of the role set out above cannot be separated from the non-strenuous testing and commissioning work. 

The Respondent submits the ESB Electrical Rules states that “Only one PICW shall be assigned for each work location at any one time on the ESBN system.”  The Respondent submits there can only be one PICW on each job and the PICW must physically remove the switch caps and fuses and they are the only person approved to do so. 

The Respondent submits that therefore it was their determination that the Complainant could not fulfil the role of PICW on the Magnefix programme due to its strenuous nature.  The Respondent submits it could not accommodate the Complainant in another role on the Magnefix Programme other than that of PICW as these roles involve a large amount of jointing, electrical installation and asset replacement works which the Complainant had been deemed unfit to carry out. 

The Respondent submits the Complainant requested that he be allowed to continue working in a purely supervisory role.  The Respondent submits the tender submission to the ESB for these works allowed for 3 electrical resources to complete the tasks and accommodating a fourth would have placed a disproportionate burden on the Respondent as the Respondent would have had to hire another qualified person to carry out the jointing works. 

The Respondent submits works on New Connections is primarily jointing and submits that Electrical Installation by its nature is strenuous activities. 

The Respondent submits that assigning the Complainant to a purely supervisory site-based role would have required the Respondent to create an entirely new job to facilitate the Complainant.  The Respondent submits it is important to note that an employee who performed the same role as the Complainant was involved in an incident on duty in July 2024 and further to an occ health review he was deemed unfit for the physical demands as an electrical supervisor and it was suggested that he only complete light duties but as this role does not have light duties he remained on sick leave while undertaking treatment for his injury.

The Respondent submits it emailed the ESB in January 2024 seeking clarity on the requirements for PICWs who are working on UG Asset Replacement works such as Magnefix and Mini-Pillars as the Respondent was preparing for the submission of a tender for UG works in Dublin and such clarity was necessary.  The Respondent submits the response provided that the role of the PICW is covered as per the ESB Electrical Safety Rules and the person may assist as a working member of the crew provided it doesn’t negatively affect his role as PICW and this will primarily depend on the number of crews on site and the complexity of the work tasks as part of an outage. 

Assessment of alternative roles

The Respondent submits it reviewed all 24 open roles across the business to find a suitable alternative.  The Respondent submits there were 15 roles where the Complainant did not have the necessary qualifications.  The Respondent submits it then looked at the remaining potential roles where the Complainant did have the relevant qualifications and there were 2 of those roles that did not involve strenuous activity namely Commercial Administrator and Project Manager.

The Respondent submits they wrote to the Complainant on 7th June affirming the occ health recommendations albeit for a differing period of 3-6 months subject to a review after 3 months. 

The Respondent submits that on 7th June the Complainant was informed that reasonable alternative roles had been reviewed and the Respondent was unable to identify a suitable alternative in line with the medical recommendations.  The Respondent submits it does not have any site-based fully supervisory roles, all the roles are working supervisors.  The Respondent submits the Complainant remained on paid sick leave. 

The Respondent submits that on 9th June the Complainant stated that he did not accept that he was unfit for work or that the Respondent had reviewed all reasonable alternative roles.  The Complainant stated that he had been managing his medical condition perfectly since his admission to A & E in February while continuing to supervise Magnefix replacement works. 

The Respondent submits they requested of the Complainant that he meet with HR and the Electrical Manager Substations to discuss reasonable accommodation further on 17th June 2024. 

The Respondent submits that the review process that had been undertaken for all open roles was discussed and detail was provided on all the roles and the physical work involved.  The Respondent submits it looked at the engineering team and the civil supervisor role which had strenuous activity and physical work.  The general operative role and the junior commissioning engineer role likewise.  General operative within the Home Services also ruled out due to physical manual work including lifting equipment into attics and attic inspections.  The Telecoms surveyor role involved travel and when on site there is an element of heavy lifting including vault covers.  The role of Service Delivery Technician also involved physical activity assisting as the number 2 on a crew with fibre broadband.

The Respondent submits the potential roles that would be suitable were the Commercial Administrator and Project Manager which was a full-time position and that it wouldn’t make sense for the Respondent to put him in that role in the interim and then lose him back to his own role. 

The Respondent provided details of the Commercial Administrator role and the salary banding and the Complainant stated he wanted to stay on his current salary to which the Respondent confirmed they were not obliged to maintain his salary if they found a suitable alternative role. 

The Respondent submits the Complainant said he wanted to apply for the PM role and remain in that role.  The Respondent submitsthey advised the Complainant to apply for it on the internal system and they would notify the recruitment team to be on the lookout for his application.  The Respondent submits they informed the Complainant on 24th June that all applications were currently under review and the recruitment team would be in touch with him regarding next steps in the process. 

The Respondent submits that on 25th June the recruitment team contacted the Complainant and informed him that his application had been received and that the tender for this process was currently in progress and had yet to be finalised.  The Respondent submits that once confirmation of the award of the tender comes through all applicants would be notified and the next stage of the hiring process would commence. 

The Respondent submits that on Friday 5th July the Complainant resigned from the Respondent Company.  The Respondent submits that on Monday 8th July the Respondent asked the Complainant to reconsider his resignation.  The Respondent submits that on 10th July the Complainant confirmed that he would not be reconsidering his resignation. 

The Respondent submits the resignation was accepted on 12th July and submits the Complainant confirmed on 15th July that he no longer wished to be considered for the PM role. 

Law replied upon by the Respondent

Section 6 Employment Equality Acts 1998-2015 (as amended)

Section 16(3) Employment Equality Acts 1998-2015 (as amended)

Nano Nagle v. Daly [2019] IESC 63

N Humpries v. Westwood Fitness Club [2004] ELR 296

Day 2 summary of Respondent position

The Respondent firmly refutes the claims.  The Respondent submits that when they were made aware on 29th May they addressed the matter immediately.  Further to the restriction on strenuous activities the Respondent submits it conducted a thorough review and identified two roles that might be suitable.  The Complainant sought to retain his current position.  The Respondent submits it was committed to maintaining open lines of communication. 

Summary of Respondent witness Ms Mary McGillycuddy HR Manager (hereafter HR) on oath

The witness submits the Complainant raised no grievance internally regarding reasonable accommodation.  The witness submits that when the occ health review came back it referred to tasks the Complainant would be limited in doing.  The witness submits the Complainant’s role was one that to be undertaken in its entirety and that it was not possible to undertake the lighter part of the role.  The witness submits there were 24 open positions in the company at that time fifteen of which were not suitable due to qualifications / experience and when the strenuous activities were removed from the other open roles that left 2 roles that could be suitable namely a Project Manager role and a Commercial Administrator role.  The witness submits having regard to the former they were waiting for a tender to come in. 

The witness submits the Respondent didn’t act internally in February as there was nothing flagged to them.  The witness submits that generally an occ health referral is made when there is absence of two weeks or more.  The witness submits that when they were put on notice by the GP about strenuous activity they acted immediately.  The witness submits they reviewed the different elements of the Complainant’s role and there were not enough substantive tasks remaining which would be a disproportionate burden on the Respondent. 

The witness submits the Complainant asked if he could do the lesser tasks.  Regarding access to sick pay the Respondent submits the Complainant was paid in full up to 17th June when he was notified he would be placed on sick pay which is the CWPS sick pay.  The witness submits he was paid €50 per day.  The witness submits they were committed to finding a solution and that they had thought the Complainant was too. 

The witness submits they had assumed he wanted a good outcome and had maintained full pay for him until 17th June. 

Summary of cross-examination of Respondent witness Ms Mary McGillycuddy HR Manager

It is put to the witness that the Project Manager role was never offered to him to which the witness replies there would be a process as it was a full-time role to which the Complainant reiterates he wasn’t offered it but that he was offered the opportunity to apply.  The witness submits they were trying to accommodate him for three months.

The witness is asked when did she say he could raise a grievance about reasonable accommodation to which the witness replies that if there were additional issues to those currently being investigated in a previous grievance he had raised then he could raise this under a separate process and that is why she suggested it to him.  The Complainant states he was expecting reasonable accommodation to be addressed as part of the grievance relating to other matters that he had previously raised.

The Complainant states he received an email on 2nd July with the outcome of his first grievance and that it was after receiving this he was advised he would have to raise a second grievance.  The witness submits full pay was extended by one week and he commenced his new role on 8th July.  The witness submits the role sent to occ health was accurate and it was she who put the form together for occ health and she wanted to the occ health doctor to be clear on what the tasks were. 

The witness submits that after receiving the cert from the Complainant on 29th May she got an occ health appointment for him two days later which was unheard of.  The witness is asked if she stated on the form that he had raised grievances in the Respondent company the witness submits that she has to provide as much information as she possibly can. 

The witness is asked if she stated in the referral that he (the Complainant) feels he has been victimised to which she replies she felt it was relevant because he was aggrieved.  The witness is asked again why is she sending stuff about grievances to which she replies because it is normal practice and she was trying to paint as much of a picture as she could and that she has to be completely open and honest with the doctor and that she cannot influence occ health her job is to provide all the relevant information. 

The witness is asked if when the report came back did the Respondent consider the redistribution of core tasks and was it she who decided that 6kgs was heavy and strenuous followed by a question on whether she considered obtaining public funding.   The witness replied public funding was not considered and that there was a need for someone who could carry out the role in its entirety and that it would have been a disproportionate burden to have two people undertaking the job.  The witness submits they were open to having reasonable outcomes to which the Complainant responds they have provided no evidence that reasonable accommodation was ever considered.  The witness responds that if the role was split there would have to be two salaries.  It is put to the witness that there were no discussions around him returning to his previous role and all they talked about was reasonable alternatives not reasonable accommodation. 

Summary of direct evidence of Respondent witness Mr John Kearney (hereafter JK) on oath

JK submits the first he heard about the Complainant’s medical condition was the morning after he had been admitted to hospital and he makes reference to the exchange of texts between them where the Complainant said he was being kept in overnight for observations and a further text from the Complainant stating they had ruled out all serious medical conditions and apparently he had an infection that would be treated with over the counter medication.    

The witness submits that between then and 29th May there was nothing from the Complainant.  The witness submits the Complainant was a valued member of their team and that he was the first cable jointer they had and the first to get PICW.

The witness submits the Complainant’s role is absolutely strenuous heavy work with large equipment and very physical work.  The witness submits that if they had removed the strenuous elements it would no longer be a full role.  The witness submits that he and HR reviewed the role and there was not enough left in it after restrictions were adhered to there was simply not enough left for it to remain a role. 

Summary of cross-examination of Respondent witness JK

In response to a question as to whether he organised the Magnefix roles the witness submits that his role is that of PIW (Person Issuing Work) and he plans the work, nominates the PICW and the apprentices.  There is reference made to the PICW role in the ESB electrical safety rules to which the witness responds the rules are written such that they apply across all the network to every and any piece of work. 

The Complainant submits that between September 2023 and April 2024 he only did Magnefix work and ask the witness if he ever appointed him or specified that he should be a jointer or crew member to which the witness responds that in the Respondent company the PICW a working member of the crew. 

The witness is asked again if he had asked him (the Complainant) to carry out any jointing work to which the witness replies that it wouldn’t be practical for him to assign work.  The witness is again referred to the safety rules where it states the PIW shall communicate the work plan to which the witness replies that the rules simply cannot get into that level of detail and that its up to the Respondent to manage their own resources and that the resources needed would be part of the discussion when the statement of works is reviewed. 

The Complainant submits they are both working in their roles to the safety rules and it is put to the witness that he allocates all persons to fulfil their roles and he only ever appointed him as a PICW because his role as a jointer ended in September when he was promoted to which the witness responds there is no role that only employs a PICW.  The witness submits the safety rules do not get into the specifics but that the Complainant’s role is that of cable jointer and the PICW approval allows him to perform that role for the ESB.  The witness submits the Complainant’s core role is that of a cable jointer and now that he is PICW approved retention is key. 

The witness submits PICW is a qualification within the role and that the rules are generic and makes reference to the written submission which provides at 8.2 “as part of the Magnefix procedure, testing can only be performed by the PICW which is the level of approval held by the Complainant. 

PICW approval certain subsets physical trace of cables for example nobody else can carry out that task.

The Complainant submits the physical elements could be separated and submits he was there on 21st March for the assessment on the candidate and he did not have to carry out any physical elements. 

The Complainant makes reference to where it says these are the physical elements and PICW can supervise a competent person.  To which the witness replies the person carrying out the tasks must be competent and in the Respondent company the PICW is the competent person they assign to do the roles

It is put to the witness that he decided he (the Complainant) couldn’t fulfil the role due to strenuous activity to which the witness replies he has 25 years of experience working in ESB and the PICW is a critical to the infrastructure and the Respondent model of the PICW is that he is a working member of the crew and that there isn’t a piece of that involves just management alone. 

The witness submits there would be a requirement to have 2 PICWS on a job if the physical elements were stripped away and this would be a disproportionate burden on the Respondent company.

Respondent closing submission

The Respondent rejects these claims in their entirety and submits the Respondent adhered to its legal obligations.  The Respondent submits this is a company of 25 years’ experience and a relationship of extreme trust and confidence with the ESB.  The Respondent submits it acted promptly and reasonably and undertook a thorough review of all roles and two were offered.  The Respondent submits the onus on the employee to offer suggestions has not been met.

The Respondent submits it is not obliged to redefine the role and it has acted in full compliance with legal obligations. 

The Respondent submits there are no grounds for discrimination. 

CA-00065171-001

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.  I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing. 

Where the evidence of the parties differs greatly and cannot be reconciled findings are made on the balance of probabilities.  In my decision-making role I am constrained both by statute and by precedent. 

The issues for consideration by me in the within complaint are as follows:

(1)    whether or not the Complainant was subjected to discriminatory treatment on the grounds of his disability contrary to section 8 of the Employment Equality Acts 1998-2015 (“the Acts”): and

(2)    whether as a person as with a disability within the meaning of section 2 of the Act, the Respondent has failed to provide the Complainant with reasonable accommodation contrary to section 16(3) of the Employment Equality Acts 1998-2015 (“the Acts”)

The Relevant Law:

Section 2(1) of the Employment Equality Acts 1998-2015 (“the Acts”) defines disability 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 withoutthe 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;

Section 6 of the Acts defines discrimination as follows: 

6.—F14(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

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

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

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

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

The within complaint is made pursuant to the Acts on the disability ground.

In the instant case it is not disputed that the Complainant has been diagnosed with a medical condition.  It is not disputed that the Complainant has a disability within the meaning of section 2 the Employment Equality Acts 1998-2015 (the “Acts”) as a result of which he is unable to fulfil his role as a PICW.  

In the circumstances I am satisfied that the Complainant’s medical condition clearly constitutes a disability within the meaning of section 2 of the Acts.   

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. 

The Burden of Proof:

Section 85A of the Employment Equality Act imports the burden of proof requirement to be established by both a complainant and a respondent.  The section shifts the burden of proof to the respondent where facts are established by a complainant “from which it may be presumed that there has been discrimination in relation to him or her”. 

Section 85A (1) provides as follows:

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

This requires a complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.  If he succeeds in so doing, then, and only then, is it for the Respondent to prove the contrary.  The Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to a respondent.  “Prima facie” evidence is evidence which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.

In Margetts v. Graham Anthony & Company Limited[EDA038] the evidential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such inferences can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”   

When considering the primary facts adduced by the Complainant, I must take into consideration the Respondent’s contrary evidence when determining whether the burden of proof should shift to the Respondent.  The Labour Court in the case of Dyflin Publications Limited v. Spasic [EDA 0823] held as follows:

“…the Court should consider the primary facts which are relied upon by the complainant in their proper context.  It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant.”   

The Complainant must therefore first establish a prima facie case of discrimination, comprised of two elements as follows: (1) he has a disability and (2) he was subject to discriminatory treatment. The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act i.e., that he has a disability, is not enough in itself to establish a claim of discrimination.  As per Graham Anthony above, the Complainant must adduce further facts from which it may be inferred on the balance of probabilities that he was not afforded reasonable accommodation, in this instance, as claimed.

The Labour Court in the case of Melbury v. Valpeters[EDA0917] held as follows in its consideration of section 85(A):

“…provides for the allocation of the probative burden in cases within its ambit.  This requires that the Complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Equality Officer in Minaguchi v. Mr Ray Byrne T/A Wineport Lakeshore Restaurant[DEC-E/2002/20] stated as follows:

“It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are:

·       That s/he is covered by the relevant discriminatory ground(s).

·       That s/he has been subjected to specific treatments; and

·       That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

Section 6(1)(a) of the Employment Equality Act provides that discrimination shall be taken to have occurred where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any grounds specified in subsection (2)….”  Section 6(2)(g) of the Act defines the discriminatory ground of disability as follows: “as between any two persons,…that one is a person with a disability and the other either is not or is a person with a different disability.”

The wording of section 6 “would be treated” allows for the use of hypothetical comparators in appropriate circumstances of discriminatory treatment, other than in relation to equal pay where an actual comparator is required. 

In cases involving less favourable treatment, a comparator can be actual or hypothetical and in this I am guided by Henry Denny v. Rohan [EDA1310] where the Labour Court followed the decision of the House of Lords to that effect in Shamoon v. Chief Constable of the RUC [2003] IRLR 258.  Where the treatment complained of is because of a protected characteristic, a hypothetical comparator is a person who does not have that characteristic.  An appropriate comparator could be a person in a similar role who does not have a disability or a person who has a different disability.  In the instant case no named comparator with a different disability was put forward for consideration and, therefore, it follows that the appropriate comparator in this case is a person in a similar role who does not have a disability. 

The Relevant Facts

The focus of the within complaint centred on the Respondent’s alleged failure in its obligation to provide the Complainant with reasonable accommodation for a disability.  The Complainant did little to ventilate or to advance any specific position in relation to his claim for direct discrimination on the grounds of disability.  Notwithstanding, for completeness I will address this element of the Complainant’s complaint hereunder on the basis of the evidence as adduced.      

I note there was reference made by the Complainant to a colleague who had been in receipt of different sick pay arrangements to the Complainant for the duration of his absence from work.  It was confirmed by the aforesaid colleague, who attended the hearing as a witness for the Complainant, that he was on sick leave as a result of a workplace injury.

I note the Respondent sick pay policy which provides as follows:

“In the case of an injury on Duty (IOD), each accident is reviewed on its own merit, and the company may waive the wating period and allow access to the sick pay scheme benefits or make alternative arrangements in consultation with the employee.”

I am satisfied the difference in treatment arises out of the application of the sick pay policy and nothing else. 

While the Complainant took issue with the manner in which he perceived he was treated when he returned from his sick leave on 13th May 2024 I am unable to find this constitutes less favourable treatment on the grounds of disability in circumstances where, as a matter of fact, the Respondent was not on notice of the Complainant’s disability until such time as he (the Complainant) provided a letter from his GP to the Respondent on 29th May 2024.    

Having carefully considered the evidence and for the reasons set out above,  I am satisfied that the Complainant has failed to establish facts from which it could be inferred that persons without a disability or a different disability, or a hypothetical comparator, would have been treated more favourably than him in relation to the matters he seeks to rely upon in the context of the instant case if indeed those matters are that which is set out above as there was no other evidence to support this claim put before me either in the Complainant’s written submissions or at hearing over two days. 

Having regard to the foregoing, I am satisfied that I have not been presented with evidence to support a claim of direct discrimination on the grounds of the Complainant’s disability.  I find that the Complainant has not pointed to any facts of such significance that raise an inference of discrimination.   Therefore, I am satisfied that there is no evidence of the Complainant being treated less favourably by the Respondent on the grounds of his disability.  Accordingly, I find that the Complainant has failed to establish a prima facie (upon initial examination) case of discriminatory treatment on the grounds of disability. 

Taking the Complainant’s evidence at its height, I find there is no fact of such significance that could raise an inference of discrimination.  Turning now to the central plank of the Complainant’s complaint.   

Reasonable Accommodation

It is accepted that the Complainant has a disability within the meaning of the Acts and therefore enjoys the protections of the Acts. 

It was not disputed that the Complainant has pericarditis, and medical evidence was submitted to that effect.

The Relevant Law

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. 

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

16.—

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

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

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

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

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

(i) the financial and other costs entailed,

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

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

Section 16(4) of the Act set out the type of accommodations which could be made by an employer and these measures are referred to as appropriate measures which are defined as:

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

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

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

Section 16 of the Act was the subject of comprehensive judicial analysis by the Supreme Court in Nano Nagle v. Marie Daly [2019] 30 ELR 221.  Charlton J unequivocally and unambiguously pointed out at paragraph 10 of his judgment in Nano Nagle that section 16 of the Act places no obligation on an employer to find alternative employment for an employee who is unable through disability to perform the job for which they have been hired where he held as follows: 

“The requirement to redeploy does not arise under the 1998 Act in this jurisdiction.  Thus such cases as cited above [ i.e., Archibold v. Fife Council [2004] UKHL 32, [2004] I.C.R. 954 and Chief Constable of South Yorkshire Police v. Jelic [2010] I.R.L.R. 744] from the England and Wales jurisdiction would not carry the same imperative here.” 

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 on the interpretation of section 16 of the Acts. 

As per Barr J 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 requirement to provide reasonable accommodation, and the particular measure of redistributing an employee’s responsibilities, was comprehensively considered by the Supreme Court in Nano Nagle.   The Supreme Court clarified that the redistribution of duties may be an appropriate measure and that the relevant test concerning the provision of reasonable accommodation is one of reasonableness and proportionality.  As per MacMenamin J:

 “The test must be one of fact, to be determined in accordance with the employment context, instances of which are as illustrated in s.16(3).  The test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate and employee.  It is, therefore, the duty of the deciding tribunal to decide, in any given case, whether what is required to allow a person employment is reasonable accommodation in the job, or whether, in reality what is sought in an entirely different job.” [emphasis added] 

In the case of Nano Nagle the Supreme Court has provided guidance and clarification regarding the nature of the obligations on an employer to provide reasonable accommodation to a person with a disability under the provisions of section 16 of the Acts.  MacMenamin J held at paragraph 84 that:

 “… 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. Section 16(4) then goes on to identify what appropriate measures should be taken. Although the definition is somewhat repetitive and circular, what is identified are effective and practical measures, where needed in a particular place, to adapt the employer’s place of business, including the premises, equipment, patterns of working time, and distribution of tasks, or the provision of training or integration resources, but does not include any treatment facility or thing that the person might ordinarily or reasonably provide for himself or herself”.

The Supreme Court acknowledged that if an employee would not be able to fully undertake the duties of his/her role, even on the provision of all reasonable accommodation, then there is no discrimination at issue.

MacMenamin J returned to this point at par 107 of the judgment where he said:

“Once consultation, or other necessary steps for compliance, have been taken, an employing entity may have to ask itself the ultimate question whether, having explored the modes of accommodation, and if, prudently having consulted with an employee, the position, as defined in s.16(1), is, in fact, capable of adaptation so as to accommodate that claimant, and whether the claimant would be capable of performing that function thus adapted. But it is that “position” or job, not another one. If there is a challenge to this decision, this must be assessed objectively by the tribunal vested with the statutory duty of carrying out such an enquiry and also vested with the expertise to carry out such assessment. If, on reasonable accommodation, a claimant is unable to fully undertake the duties attached to the position, then the Act provides there can be no finding of discrimination.” [emphasis added] 

In setting out this test, the Court did accept that “the test is one of reasonableness and proportionality: an employer cannot be under a duty entirely to re-designate or create a different job to facilitate an employee” and that in most instances “removing all the duties which a disabled person is unable to perform” would inevitably become a disproportionate burden.

In Cunningham v. Irish Prison Service [2020]IEHC 282, Barr J noted at paragraph 72:

“In addition, the case law makes it clear that the employer does not have to create a job for the person with the disability nor do they have to provide measures that are unduly burdensome. This is the test of proportionality or reasonableness: see Nano Nagle judgment at paras.89 and 106.”

Barr J. concluded that there was no one-size-fits-all approach and the nature of the obligation to provide reasonable accommodation depended on the circumstances.

The Relevant Facts

It stands to reason that if a person who has a disability is seeking reasonable accommodation, as described under section 2 of the Act, he/she must ensure in the first place that the employer expected to reasonably accommodate the employee must be aware of the nature of the disability. It was not disputed that the Complainant has pericarditis, and medical evidence was submitted to that effect.

I note that the Complainant notified the Respondent of his disability on 29/05/2024.  The first indication of his disability was provided to a member of staff of the Respondent at a grievance outcome meeting on 29/05/2024. 

For reasons unknown, I note the Complainant remained selective in the drip-feeding of any medical information he chose to provide to the Respondent from the onset of his condition in February 2024 to finally disclosing it to the Respondent on 29/05/2024.  I note the Complainant did provide a cardiology referral letter which he received on his discharge from hospital on 29th February (referral letter is dated 29th February).

However, I note this was not this was not provided to the Respondent until 15th April 2024. 

I note a GP medical certificate covering 27/02/2024 to 28/02/2024 certifies the Complainant as “unfit to work due to medial investigations.”

I note the hospital discharge letter dated 29th February 2024 referenced above documenting a hospital appointment on the 16th April 2024, and provided by way of prior notice of same to the Respondent on 15th April 2024, did not disclose any medical information whatsoever.  It provided details of the date, time and venue of an appointment at a named doctor’s cardiology clinic. 

I note the letter provided by the Complainant on 18th April 2024 to the Respondent provided as follows:

“Please note the above gentleman Mr Martin Reynolds is currently being seen and followed up by the Cardiology department in Tallaght University Hospital.  We would recommend that he be given a period of 2 weeks of leave in order to aid his recovery from his current medical illness.” [sic]

I note this letter is undated and discloses no specifics about the Complainant’s medical condition.    I note for the purposes of processing the two weeks leave as sick leave a medical certificate would need to be provided.  This was requested by the Respondent and provided on 22/04/2024 but again did not disclose any specifics in regard to the Complainant’s medical condition.   

I note an annual leave request made by the Complainant requesting leave from 22/04/2024 to 06/05/2024 had been declined by the Respondent on the grounds he did not have the leave accrued.   The aforesaid letter was then provided by the Complainant that indicated he would be taking sick leave for the same two weeks that had been declined when annual leave was requested.    

I note the follow-up letter to the Complainant’s GP dated 23/04/2024, after his appointment on 16/04/2024 in the cardiology department, refers to his diagnosis of pericarditis and makes reference to the fact the Complainant went straight back to work after his admission to A & E and that he did not take a break as advised. 

I note this letter was not at any time provided to the Respondent and the first sight the Respondent had of this letter was when it was exhibited by the Complainant in his submissions. 

I note a GP letter dated 28/05/2024 provided to the Respondent on 29/05/2024 which provides as follows:

“The above named has been admitted to hospital earlier this year with a pericarditis which is inflammation of his heart.  I would advise that he refrain from any strenuous working activities for the next year.” [sic]

I note a GP letter dated 06/06/2024 which provides as follows:

“The above named has been admitted to hospital earlier this year with a pericarditis which is inflammation of his heart.  I would advise that he refrain from any strenuous working activities for the next year.  However, I feels that is well capable mentally and physically of working in a non strenuous environment and that he is mentally capable of going forward with a grievance process.” [sic]

I note as soon as the Complainant put the Respondent on notice of his disability on 29 May 2024 there was an immediate referral to Occupational Health and an appointment was scheduled for 30 May 2024.    

It is well established and best practice that when referring an employee for a medical review it is important to provide the medical advisor with a detailed description of the employee’s normal day to day duties.  I note this may be very different from a job description which was originally drafted when the role was filled.  In order for a medical advisor to determine whether an employee is actually fit to carry out their role on a day-to-day basis it is important for that medical advisor to be fully apprised of what the person could potentially be required to do on a day-to-day basis.  [emphasis added]

I note Occupational Health reverted the following day 31 May with a medical report stating as follows: 

“In my opinion the Complainant is temporarily not fit to perform heavy physical or strenuous manual work due to his underlying condition and his persisting symptoms – as per his job description I expect that this would include some components of jointing activities, electrical installation and asset replacement tasks.  In my opinion he is fit to perform lighter manual or dexterous tasks as well as documentation or administrative roles.  In my opinion, I expect, he will not be fit to return to his normal role for 3-6 months at least.  I expect he will be able to return to his normal duties in time.” [sic]

I note there was a recommendation that the Complainant be reassessed in 3 months’ time. 

I am satisfied that the Respondent was guided by its own Occupational Health doctor in order to fully establish the facts in relation to the Complainant’s disability and the impact it had on his ability to carry out the full range of duties associated with his role. 

I have carefully considered the Respondent’s actions on foot of the occupational health report from May 2024.  I note the report provides that the Complainant is fit to perform lighter manual or dexterous tasks as well as documentation or administrative roles.   

It is clear from the Supreme Court’s decision in Nano Nagle that an employer must engage in some form of exploratory action to ensure compliance with its duties under section 16.  This may involve consultation with the employee, independent assessment or some other step for compliance

Upon receipt of the medical report, I am satisfied the Respondent conducted an assessment of the Complainant’s role and duties in the first instance which was then followed by an assessment of alternative roles when it was established that to accommodate the Complainant in his current role would require the hiring of a cable jointer to undertake the physically strenuous elements of his role namely the tasks involved in Jointing Activities; Electrical Installation Works; and Asset Replacement Works.    

I note two roles were identified as being suitable for the Complainant namely that of Commercial Administrator and that of Project Manager.    

I note the Complainant questions the veracity of the Respondent’s account of the assessment of his role.   I note the Complainant doubts that discussions ever took place and I note he sought proof that those discussions did in fact take place. 

Notwithstanding, I am of the view that it would be unrealistic for all communications in the workplace to be documented and recorded.  I accept the Respondent’s evidence that the Complainant’s medical condition and his role was discussed outside of formal management meetings on the basis of the scoping exercise that was undertaken across all the open roles in the company and the information provided thereto together with the comprehensive assessment undertaken of the Complainant’s role and duties in the first instance.   

I note the Complainant’s assertion that the report from occ health was predicated on the provision of incorrect information from the Respondent about his job role.  It is the Complainant’s position that his role as PICW is a purely supervisory role that does not involve any strenuous activity whatsoever.    

It is the Respondent’s position that the PICW is considered a working member of the crew which is disputed by the Complainant.  I note the evidence adduced at hearing by the Complainant’s witnesses in this regard. 

However, on balance I find I am not persuaded that the Complainant’s role was that of a purely supervisory nature that did not involve any physical work for the following reasons.    

I have considered the type of work the Complainant was engaged in from the details logged on his time sheets and I note that from the time he was accredited with the PICW approval in September 2023 the Complainant spent approximately 65% of his time on Magnefix; approximately 25% of his time on New Connections; and the remaining time was spent between training and Mini-Pillars. 

I note the Complainant asserts that during all of this time his work was purely of a supervisory nature yet I also note the Complainant’s asserts that his work, on his return from sick leave in May, was of a more physically demanding nature.  I note the Respondent’s position that he was assigned to one of the smallest units of work on a New Connections project on his return. 

There is an inherent inconsistency here that I find I am unable to reconcile.  On the one hand the Complainant submits his role was purely supervisory since September 2023 during which time 25% of the work undertaken by him was New Connections.  On the other hand the Complainant submits that when he returned from sick leave to New Connections his work then was of a more physically demanding nature.     

I have a difficulty in reconciling the Complainant’s assertion that the New Connections work on his return from sick leave was more physically demanding than the work the Complainant had been engaged in since September of 2023 which is asserted by him was of a supervisory nature yet 25% of that work involved New Connections. 

I have an even greater difficulty reconciling this assertion by the Complainant of “more physically demanding work” on New Connections when he returned from sick leave with the Complainant’s overarching claim that his role is a purely supervisory role and there is no requirement for him to do anything other than supervise be it on New Connections or Magnefix or Mini-Pillars. 

I have also considered the Complainant’s submission on his WRC complaint form which provides as follows:

“Given that my Electrical Supervisor role at TLI mostly involved supervising and rarely required me to carry out physical jointing works, it seems to me that providing accommodation for my return to work wouldn’t have provided any additional burden on my employer.”  [emphasis added]

I am of the view the adverbs “mostly” and “rarely” used by the Complainant in his own description of his role had morphed into an absolutist position by time of hearing where the Complainant was asserting his role was purely supervisory and involved no physical activity.

Taking all of the foregoing into account I have to conclude, on balance, that an irreducible minimum requirement of the Complainant’s role is that he is considered to be a working member of the crew who might, in this capacity, have perform a range of activities including cable jointing for which he was hired in the first instance. 

It follows that to allow a PICW who is restricted in his activities to continue in that role would be to do precisely what Nano Nagleheld an employer is not under a duty do i.e., “to re-designate orcreate a different job to facilitate an employee”.

I note the reasonable accommodation sought by the Complainant is that he remain in his role in a purely supervisory capacity across Magnefix; New Connections; and Mini-Pillars.  I note the Respondent submits the tender submission to the ESB for these works allows for 3 electrical resources to complete this task and in order to facilitate the Complainant it would be necessary to hire another qualified person to carry out the strenuous activity i.e., the jointing works. 

I am satisfied this fulfils the Respondent’s obligation to assess and consider what a restricted role might look like for the Complainant for the purposes of identifying any measures that could be taken for the Complainant to return to work and, in this instance, those measures would require the hiring of another qualified person to undertake the strenuous activities so as to enable the Complainant to remain in his role in a purely supervisory capacity.   

I am satisfied the Respondent consulted with the Complainant at the meeting on 17 June in order to discuss their findings and proposals.  I note the Complainant did not appear to bring any proposals to the table at that meeting or if he did these proposals were not put in evidence before me at hearing.

I note this particularly in the context of the question asked of the Complainant at hearing as to whether it would be fair to assume he had started making new job inquiries before that day and he replied that he could not confirm that. 

I am satisfied the Respondent was committed to the consultation process but I remain unconvinced that there was reciprocity in this from the Complainant on whom there is also an onus. 

I am satisfied the Respondent met its obligations to consult and I am not satisfied there was any meaningful input on the part of the Complainant to the consultation process in circumstances where he had informed the Respondent at a subsequent meeting on 28 June, on another matter, that he had four job offers and he would be taking one of them and advises he will be resigning.    

I note the Complainant submitted his “formal resignation on the grounds of discrimination” on Friday 5 July 2024 and he commenced in his new role on Monday 8 July 2024. 

I am of the view it can be sensibly and reasonably inferred that the Complainant’s job search would have been well underway by 17 June facilitating 4 job offers some 11 days later when the timelines around application processes, selection processes and interview process are taken into consideration together with the negotiations with potential employers. 

Nothing turns on this for the purposes of my decision but I find it to be of interest in my consideration of the totality of the circumstances in the within case. 

I note the Complainant refused to consider the Administrator role offered unless he could remain on his current salary.  I note the Complainant did express an interest in the Project Manager role and he applied for it. 

I note the Complainant applied for this role and he was notified on 24 June that all applications were currently under review and he would be notified of next steps.

For completeness, section 16 of the Acts does not oblige an employer to find alternative employment for an employee who is unable through disability to perform the job for which they have been employed. 

Based on the foregoing, I have to conclude that what the Complainant sought was that the Respondent create an entirely different job to accommodate him and that was the job of a PICW Supervisor who would not be considered a working member of the crew contrary to the ESB Electrical Safety Rules and whose only function on a job would be purely supervisory.

For the reasons set out above, I find that the Complainant has not established a prima facie case of discrimination on the ground of disability.  For the reasons set out above I find there was no breach of the duty to provide reasonable accommodation.  The law is set out clearly by the Supreme Court in NanoNagle. 

CA-00065171-001

The Complainant has not established a prima facie case of discrimination on the ground of disability or that there was a breach of the duty to provide reasonable accommodation for that disability. 

Therefore, I find that he was not discriminated against.  I decide this complaint is not well-founded. 

Reasonable accommodation; disability;