Complainant

Respondent

Parties

Catherine  Bracken

BCC Risk Advisory Limited

Representatives

Stephen O’Sullivan B.L. instructed by Neil Cosgrave Cosgrave Solicitors

Mary-Paula Guiness B.L. instructed by Philip Lee LLP

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-00063527-001

17/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00063527-002

17/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00063527-003

17/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00066291-001

26/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00066291-002

26/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00066291-003

26/09/2024

The Respondent carries on the business of cyber security solutions provider. It trades under the name Edgescan. The Complainant was employed by the Respondent as Office Manager from the 5th of September 2016 until her resignation which took effect from the 1st of August 2024. Her weekly gross remuneration was agreed at €932.69.

The Complainant initially made the following claims:

CA-00063527-001

A complaint pursuant to section 77 of the Employment Equality Act, 1998 – 2015, alleging discrimination on the basis of her disability in relation to terms and  conditions of  employment and alleged failure to provide reasonable accommodation. 

CA-00063527-002 and CA-00063527-003, CA00066291-002 and CA00066291-003

Complaints pursuant to section 27 of the Organisation of Working Time Act relating to allegedly unpaid holiday and public holidays entitlements.

CA00066291-0001

A complaint of unfair (constructive) dismissal pursuant to section 8 of the Unfair Dismissals Acts, 1977 – 2015.

At the hearing the Complainant withdrew the Complaints under the Organisation of Working Time Act and it was further confirmed that the claim under the Employment Equality Act did not extend to harassment but was limited to the basis as outlined above. The Claim was fully contested by the Respondent.

As regards the Unfair Dismissal Claim, dismissal was in dispute, and this claim too was fully contested.  

The matter was heard over several days; 15th of April 2025 (Case Management), 17th and 18th of June and 1st of August 2025. The Complainant gave evidence. The Respondent called two witnesses, Ms. Rebecca Bowman of Insight HR and Mr. Mr Rahim Jina, co-founder and COO of the Respondent. All witnesses gave evidence on affirmation.

The Complainant’s case was summarised in submissions delivered on her behalf which included the following:

The Complainant performed well during her employment with the Respondent, was never subject to any adverse disciplinary complaint, investigation, finding or sanction, successfully passed her probationary period and was regularly commended on her performance by the Respondent. She initially reported to Mr Rahim Jina, co-founder and COO, and Mr Eoin Keary, co-founder and CEO. Since October 2020 and the commencement of his role, she has reported directly to Mr Eoin Twohig, CFO.

In or around 2019 there was a notable change in the workplace environment and the Complainant was subjected to a highly stressful work environment and, particularly from in or about October 2019 onwards. She underwent [medical procedure] in November 2019 and was re-hospitalised due to a subsequent infection and ultimately returned to work in January 2020. After the outbreak of Covid-19, she was required to work from home and would visit the office once or twice a week to check post etc.

By email dated 30 March 2022 the Complainant wrote to the Respondent raising a formal grievance of being subjected to bullying and harassment by Mr Jina from October 2019 to August 2022 in relation to:

i                   Communication regarding payroll in October 2019;

ii                 Communications regarding her sick leave and return to work in December 2019; and

iii                Communications regarding office management duties in March 2022.

iv                Expansion of her role

On 1 April 2022 the Complainant’s General Practitioner noted that she was suffering with acute stress and anxiety, panic attacks, poor sleep and concentration, low mood and an exacerbation of depression. On 1 April 2022, the Complainant commenced a period of certified sick leave due to work related stress. She duly furnished a copy of this and subsequent certification to the Respondent. She remained on certified, unpaid sick leave to date.

Following the commencement of her sick leave on 1 April 2022, the Complainant contacted the Respondent to advise that she did not want to be contacted directly by Mr Jina while on sick leave due to the impact it was having on her health. Despite this request, Mr Jina continued to contact her directly thereafter, causing her further distress. Same included an email on 6 May 2022 querying whether she would be returning to work and directing that she was required to return her work laptop to work as soon as possible. The Complainant was subsequently required to return her laptop to the Respondent. Same also included a photograph sent by Mr Jina to the Complainant on 3 July 2022 of unopened post and her returned laptop on her office desk. The Complainant maintains that the Respondent failed to accommodate her disability by ensuring something as basic as Mr Jina not contacting her directly during her ongoing certified sick leave and in the context of her live complaints against him of bullying and harassment.

On 4 April 2022, the Respondent instructed Ms Marion Galvin, Head of Workplace Investigations of Insight HR, to conduct an investigation into the Complainant’s grievance. Thereafter, Ms Galvin commenced this investigative process.

On 14 July 2022, the Complainant was assessed by Dr Nicholas van de Water, of Medmark, the Respondent’s medical advisor who concluded that she remained unfit to work and that he proposed reviewing her in 4 to 6 weeks. The Complainant maintains that this medical report explicitly identified the resolution of the Complainant’s workplace stressors as being an avenue through which she could be accommodated in her return to work.

On 22 July 2022, Ms Galvin issued her investigation report in relation to the grievance process. Therein, Ms Galvin refused to uphold any of the Complainant’s grievances. This Report ultimately found that none of her grievances were upheld and failed to address at all her grievance in respect of the clarification of her role on the basis that it was outside the Terms of Reference. Despite this, the Company confirmed that that process was completed and refused to engage further. The Report was a complete “whitewash” which dismissed the grievances raised in their entirety and the only negative finding made about Mr. Jina was that his “language is direct”. It completely failed to acknowledge the humiliation caused to the Complainant.

Further, upon reviewing same, the Complainant noted that Mr Jina had evidently sought to utilise the investigation into her complaints against him of bullying and harassment to subject her to baseless, unfair, unparticularised and un-investigated allegations of underperformance, double-jobbing, deception and fraud. Mr Jina re-iterated these allegations on a number of occasions throughout the investigative process along with the threat that: “this is a serious issue. This issue will be dealt with as a separate matter upon Catherine’s return to work”. These allegations and threats caused further distress to the Complainant. The Complainant maintains that, rather than utilising the investigative process as a way of resolving these workplace issues that had been medically identified as stressors affecting the Complainant’s fitness and ability to return to work, the Respondent sought to utilise the investigative process to create further stressors and barriers to the Complainant’s return to work.

On 23 August 2022, the Complainant was again assessed by Dr van de Water. By medical report of the same date, Dr van de Water concluded that she remained unfit to work and that, given her slow recovery and ongoing symptoms, he did not foresee a return to work in the short to medium term. He stated that: “Ms Bracken’s predominant stressors remain work-related”. He concluded that she was unfit to engage with the Respondent regarding possible solutions to her work related concerns. He suggested that she be referred when her treating team indicated that her symptoms had improved or when the Respondent wished to assess her recovery’s progression if there was no sign of same.

By email dated 30 August 2022, the Complainant wrote the Respondent regarding the investigation of her grievance. Therein, she stated that she was extremely disappointed with the findings of the report and questioned its independence. She asked “Is there anything else that can be done or is that the end of the grievance process?’

On 31st August 2022, Mr Twohig unilaterally removed the Complainant from the Respondent’s WhatsApp group. Same caused further distress and embarrassment to the Complainant.

By email dated 2 September 2022, Mr Twohig wrote to the Complainant regarding her email. He stated: ‘Once you have been medically cleared to engage with the company and are due to return to work, the Company will make arrangements to address your concerns, while working with you to support you in addressing any performance related issues’. The position adopted by the Respondent left the Complainant in the quintessential ‘Catch-22’ situation wherein it will not address or resolve her expanded workplace stressors until she is certified as fit to return to work, but she is not and will likely never be certified as fit to return to work so long as these workplaces stressors remain extant. The Complainant maintains that the Respondent’s refusal to address and resolve these stressors and engineering of this Catch-22 situation amount to a failure on its part to provide the Complainant with reasonable accommodation.

By letter dated 28 October 2022, Cosgrave Solicitors, acting for and instructed by the Complainant, wrote to Mr Twohig objecting to a number of deficiencies and inconsistencies in the scope and manner of the grievance process. The letter noted that the Complainant remained out of work on certified sick leave but that Mr Twohig had confirmed to her in his correspondence of 2 September 2022 that arrangements would be made upon her return to work to address “performance related issues”. The letter noted that the Complainant’s performance appraisals had been consistently positive prior to her lodging her grievance and that same was an attempt to undermine her position. The letter stated that the Complainant had been subjected to a systematic and concerted campaign of bullying, harassment and victimisation and that she was considering whether her continued employment had become untenable. In this regard, the letter suggested the parties enter into mediation or refer the matter to the WRC as a trade dispute pursuant to section 13 of the Industrial Relations Act, 1969. By letter dated 4 November 2022, Philip Lee Solicitors wrote to Cosgrave Solicitors again denying the allegations set out in its letter of 28 October 2022. The letter stated that there was no basis for the referral of a complaint to the WRC pursuant to the Industrial Relations Act.

On 30 November 2022, Dr Bourke concluded that the injuries to the Complainant had affected her mental health to a moderate degree and her learning and intelligence to a minor degree. Dr Bourke went on to attribute the Complainant’s complaints and symptoms to ongoing work related stress. Dr Bourke noted that the Complainant’s recovery had not yet taken place and estimated same occurring within 12 to 18 months of her first attendance for treatment. By letter dated 1 May 2023, Cosgrave Solicitors wrote to Philip Lee Solicitors regarding their letter of 21 April 2023. The letter noted the Respondent’s refusal to enter into mediation, characterising same as “further evidence of the company’s complete lack of regard for our client’s wellbeing and obvious disinterest in facilitating the resolution of her grievance and return to work”. The letter noted that this refusal to enter mediation was contrary to the Complainant’s contract of employment. The letter went on to particularise the manner in which the Respondent had subjected the Complainant to bullying and harassment. The letter again called on the Respondent to consider entering into mediation to resolve these issues.

By letter dated 6 June 2023, Philip Lee Solicitors wrote to Cosgrave Solicitors regarding its letter of 1 May 2023. The letter rejected the Complainant’s allegations before stating that:

“With regard to the issues raised by Mr Jina during the course of the investigation, our client had a number of concerns in relation to certain actions of your client. It was our client’s intention to raise these with yours, but they did not have the opportunity to do so before your client went on sick leave”.

The letter went on to state that the Respondent consented to entering into mediation with the Complainant through the WRC. This mediation was subsequently unsuccessful.

The Respondent referred the Complainant to Medmark for further assessment on 28th March 2024 and again on 13th June 2024. The workplaces stressors identified by Dr van de Water as a barrier to the Complainant’s return to work have also remained unaddressed and unresolved to date. Dr. O’Ferrell had recommended employee assistance support by the employer but this was never provided.

The correspondence between solicitors continued along the same lines whereby the Respondent refused to engage with the Complainant whilst she remained on sick leave. By letter dated 28th June 2024, the Respondent denied that they were aware of her disability.

2.31 She ultimately lost all confidence and trust in her employer and tendered her letter of resignation on the 1st August 2024 for the reasons outlined therein. The Employer responded by letter dated the 7th August 2024.

Constructive Dismissal

The Complainant has discharged the burden of proof upon her to prove that the Respondent acted in such an unreasonable manner as to leave no reasonable option open to the Complainant other than to resign or that the Respondent acted in such an unreasonable manner as to amount to a fundamental breach of the contract of employment.

Equality Claim

It is submitted that in the case at hand, the Complainant suffered depression, anxiety and work related stress that manifested in numerous, severe symptoms and has resulted in her long term certification of being unfit to work. It is submitted that the Complainant’s medical condition comes within the definition of a disability under the Acts.

The issue of the level of knowledge required of an employer of an employee’s disability in order for the employee to ground a claim for discrimination under the Acts has been largely settled. In Connacht Gold Co-Operative Society v. A Worker EDA0822 the Labour Court held that an employer must be able to demonstrate that it had no actual or constructive knowledge of the employee’s disability in order to demonstrate that it was not aware of the employee’s disability. Interestingly, the Labour Court held that signs, symptoms or indications of the Claimant’s disability in his job performance could contribute to the employer being fixed with constructive knowledge of a disability. This position regarding constructive knowledge was affirmed in Flynn v. Emerald Facilities Services DEC-E2009-065.

It is submitted that, at all times, the Respondent was aware of the existence and severity of the Complainant’s disability. Indeed, this was apparent through numerous conversations, emails, medical certificates and occupational health reports.

Reasonable Accommodation

Reasonable accommodation requires employers to take account of relevant characteristics of their employees and making changes to allow the employee to do the work. In effect, this requires employers to take a proactive approach in removing barriers and making adjustment to the work environment so that an employee with a disability can be accommodated in the work place.

[The provisions of Section 16 were discussed and the following cases were cited:

Humphries v. Westwood Fitness Club [2004] E.L.R. 296;

Kennedy v. Stresslite Tanks Limited Dec-E2009-078;

Ms X v. A Nursing Home DEC-E2010-090

A Government Department v. A Government Worker ADE0516

Mr A v. A Government Department EDA061

Mr O v. Industrial Waste Management Company [2014] 25 ELR 106

Nano Nagle School v. Daly [2019] IESC 63 ]

Summarising the above jurisprudence, it is apparent that there is an obligation upon the Respondent to: conduct itself in a proactive manner in making adequate enquiries so as to be in possession of all material information concerning the needs of an employee with a disability; considering all appropriate measures that might be necessary in order to allow the employee to be capable of performing including: altering working hours, shifts, lengths and patterns; eliminating working time; altering the working location; altering the individual duties and tasks that make up the employee’s role and, if necessary, considering eliminating and redistributing roles and tasks that the employee cannot perform to other employees, once same does not amount to essential tasks of the role; and altering the working environment to accommodate the employee, including the provision or alteration of tools or equipment to the employee to allow him to perform functions that he otherwise would not be able to perform; and afford the employee ‘meaningful participation’ in the process.

In the case at hand, the Respondent failed to comply with its obligations in relation to the provision of reasonable accommodation as follows:

i                   Despite the Complainant’s live complaints of bullying and harassment against Mr Jina, certified unfitness to work and explicit requests that Mr Jina not contact her directly during same, Mr Jina continued to contact the Complainant directly while on sick leave, harass her and cause her further distress;

ii             Despite its own occupational health advisor identifying the resolution of workplace stressors as a way of facilitating the Complainant’s return to work, the Respondent failed to utilise the grievance process to achieve same and, in fact, created further obstacles to her return to work by using this process to assert baseless allegations against her of underperformance and serious misconduct;

iii            Despite its own occupational health advisor identifying the resolution of now expanded workplace stressors as a way of facilitating the Complainant’s return to work, the Respondent has refused and continues to refuse to do so until she is certified as fit to return to work. Same is despite it being these very extant and expanded workplace stressors that are causing and resulting in the continuance of her medical condition and her unfitness to return to work. As such, the Respondent has left the Complainant in the quintessential ‘Catch-22’ situation wherein it will not address or resolve her expanded workplace stressors until she is certified as fit to return to work, but she is not and will likely never be certified as fit to return to work so long as these workplaces stressors remain extant;

iv            The Respondent has failed to carry out any assessment whatsoever into whether the Complainant could be accommodated in her return to work through alterations to her reporting structure, working hours or working location; and

v             The respondent has failed to refer the Complainant act on the advices of its own occupational health assessor as to potential accommodations since 23 August.

It is submitted that the Respondent discriminated against the Complainant in failing to provide her with reasonable accommodation in the above outlined manner.

In a subsequent supplemental submission, the Complainant set out her losses and her efforts to mitigate same. The Complainant sought compensation for the effects of the discrimination and for the effects of the constructive unfair dismissal.

Following the conclusion of the hearing the parties elected to provide written closing submissions. On behalf of the Complainant the following submission was delivered:

POINTS RELEVANT TO THE UDA CLAIM

S.2 UDA defines dismissal as including

“(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, …”

The reasons why the claimant was entitled to resign or why it was reasonable for the claimant to resign include the following:-

i              The cumulative effect of the incidents complained of, the way the complaints were handled and the effect it had on the claimant’s mental health.

ii.            The counter allegations made by the Company during the Insight HR process. The counter allegations should not have been made at all in what was an investigation process relating to the claimant’s complaints, not a disciplinary investigation against the claimant. Many of the counter allegations had no relevance to the matters complained of by the claimant. The counter allegations were worded as indicating a conclusion by the Company without fair procedures being applied.

The counter allegations are listed in an email from Rahim Jima to Insight HR dated 3/6/22. They relate to inter alia allegations re Post, Courier, Background Checks and Double Jobbing which have insufficient relevance and connection to the matters complained of by the claimant.

Further, the Company accused the claimant of neglect of duties and deceit in the course of submissions to Insight HR:-.

“The toilet roll, milk, coffee, printers out of ink, not answering the phone for inbound customer calls, post not being opened, bins not collected etc, are all symptoms of neglect of duties.”

…

The above email is clearly deceptive and we are treating this as a serious issue. This issue will be dealt with as a separate matter upon Catherine’s return”

“Cagney & Toilet Roll: As stated, we have confirmed this with Cagney directly (verbally and contractually) that the supply of sanitary products was not in place at the time this issue arose. We have found that it is now in place as of late March 2022, on Catherine’s request to them. We have confirmed she has instigated this service after her false declaration to the management team to the contrary.”

These are all examples of the Respondent going on the offensive as a form of defence as Mr. Rahim appeared to take serious exception to the Claimant’s grievances. Rather than addressing her actual grievances, the Respondent opted for an inappropriate attack on the claimant’s integrity and competence. This was a missed opportunity and the weaponization of the process against the claimant was critical to the breakdown of the employment relationship, particularly when these allegations were included in the Report and referenced in subsequent correspondence when the Respondent wrote to her to advise that these issues would be addressed upon her return:

“We will make arrangements…………. to support you in addressing any performance related issues”

iii            The Investigation by Insight HR was wrongly confined to a question of whether the matters complained of amounted to bullying and/or harassment.

The claimant made the complaint to Eoin Twohig by email dated 30/3/22. The complaint was expanded in the first interview with Insight HR. The staff manual delineates the Grievance/Dispute Process at para. 4.2 from the Bullying and Harassment Policy and Procedure at para. 4.3

In para. 1 of the Terms of Reference (the TOR) it states that the complaint would be investigated under the Grievance/Dispute Process

“Edgescan has engaged Insight HR to conduct an independent investigation

pursuant to the BCC Risk Advisory Employee Handbook 2018,

Grievance/Dispute Procedures.”

Insight HR should have investigated the matters complained of as a grievance complaint. If it had, it could have been upheld the complaints in whole or in part, even if it found that the matters complained of did not amount to bullying or harassment and could have recommended how relations between the claimant and the Company could be improved with a view to her returning to work.

Once again, this was a further missed opportunity to properly address the Claimant’s actual grievances.

iv            Further to iii herein, Insight HR should have investigated the complaints made by the claimant as to the extent of her roles and responsibilities (a matter detailed in the claimant’s interview with Insight HR.

The contract of employment describes her as “Administration & Accounts Assistant”. The organization chart describes her as “Office Manager/HR. The listing of her roles and responsibilities includes in bold the duties the new responsibilities allocated to her.

The Insight HR report states

“Catherine Bracken has been employed by Edgescan for approximately six years and her job title is Office Manager. Her role is varied and covers duties from payroll and accounts to HR, to organising events and supplies for the office. Her role has also evolved over the years as the company has expanded.”

It further states

“The issue of Ms Bracken's … reported discomfort around certain aspects of her role are not within the Terms of Reference of this investigation and no further comment will be made in relation to same.”

The extent and expansion of her role clearly needed to be considered and the failure to do so was yet another missed opportunity and shortcoming in the process.

POINTS RELEVANT TO COMPENSATION

The loss to 15/4/25 is €20,270. There is a differential of €1,875 per month since 15/4/25.

The WRC could conclude that the claimant made full or partial efforts to mitigate loss looking at the following:-

The claimant gave evidence of verbal efforts to get employment.

Given the claimant’s age, job role and length of employment, it might be expected that she would be out of work for a period after resignation on 1/8/24 regardless of the extent of efforts to get alternative employment.

In the alternative, we rely on Allen v. Independent Newspapers Any failure to mitigate was because of the conduct of the employer and the effect it had on her (as detailed at para. 2 herein). The treatment of the claimant by the employer caused her to be unable to work to the level she worked prior to resignation.

In the alternative, if the WRC rules that there was no financial loss, the WRC can award 4 weeks gross earnings (see. S.7.c.ii UDA).

POINTS RELEVANT TO THE DISCRIMINATION CLAIM

The respondent argued that the claimant has not proved that she had a disability or that the employer was aware of it. We submit that the respondent was aware of a disability from the following:-

i                   On 30/8/22 the claimant emailed Eoin Twohey and Rahim Jima and stated

“All of this has caused me considerable stress, depression and anxiety. You will be aware of the fact that I am attending my GP to try to deal with this and these diagnoses.”

ii             The Claimant’s sick certs dating back to her very first cert on the 1st April 2022 referenced “Workplace Stress”, “Acute Stress”, “Acute Stress Reaction”.

iii            The Respondent was in receipt of the Claimant’s Medical Report dated the 30th November 2022 which diagnosed depression, anxiety and work related stress

iv            The claimant submitted to Insight HR that suffered stress, anxiety

v.            The Medmark report 13/6/24 refers to adjustment reaction, that she was under care of GP and was prescribed medications.

The Employer can have actual or constructive knowledge of disability - see Connacht Gold Co-Operative Society v. A Worker EDA0822

The claimant meets the definition of disability as proffered by the respondent in its submission at para. 29 and para. 33. The claimant had an illness which hindered her participation in professional life which lasted a long time. The claimant had a limitation which resulted from mental or psychological impairments which hindered her full and effective participation in professional life on an equal basis with other workers. The claimant was certified as unfit to work due to mental health issues from 1/4/22 until resignation on 1/8/24.

The respondent claims that the claimant ticked the wrong box on the claim form and that the failure to provide reasonable accommodation is not a standalone claim. The boxes ticked are evidenced at original submission p. 6. The WRC should treat it as if the box for “Conditions of employment” was also ticked or amend the claim form in this respect if necessary.

The claim is for disability discrimination and part of that claim is that reasonable accommodation was not provided.

In An Employer v. A Worker EDA 27/2014 (referred to in Kerrs Annoted Statutes in reference to s.77 EEA) the Labour Court held that the complaint form could be legitimately amended to allow for a complaint as to access to vocational training, rather than access to employment which was what was ticked.

[S.16.3 of the EEA quoted]

Employment Equality Law Bolger, Bruton, Kimber; 2nd Ed. 2022 para. 7-90 recounts

“7-90

A rare case of constructive dismissal considered under the Acts in relation to disability, which was concerned with discriminatory dismissal, a form of direct discrimination, An Employee (Mr O) v An Employer (No. 2). [2005] E.L.R. 132. In this case, the claimant claimed he was constructively dismissed from his employment due to the treatment he experienced at the hands of his employer when he returned to his employment following a period of sick leave due to serious psychiatric illness. The Labour Court found that the employer had failed to treat the employee in a sympathetic manner upon his return to work and instead was intent on making the employee’s working life difficult. The Labour Court upheld the claim of constructive dismissal in spite of the employee not invoking any grievance procedure, as it noted that there was no grievance procedure in place within the employment, and the behaviour had been perpetrated by the principals in the firm who knew or should have known that their behaviour would impact on the claimant’s health. The Labour Court did not hold back on its view on the behaviour of the employer, describing it as having conducted itself in relation to the complainant in a manner which was destructive of a relationship of mutual trust and confidence and having regard to the complainant’s emotional and psychological vulnerability. …”

In An Employee (Mr O) v An Employer (No. 2) the claimant was successful in a claim for a discriminatory dismissal under. S.77 of the EEA. It is submitted that the principle can be applied in relation to a claim for discrimination during the course of employment, as herein. The case is authority that the treatment of an employee after the disability is known could be held to be discrimination. See An Employee (Mr O) v An Employer (No. 2).

It was not solely the claimant’s responsibility to identify the reasonable accommodation required. See original submission para. 4.13.

In Mr A v. A Government Department 2008 ELR 354, the claimant had suffered a spinal injury and there was delay in his return to work. The WRC held that the respondent failed in its statutory duty to assess the complainant’s situation in a timely and pro-active manner, and to explore a full range of options to accommodate the complainant’s disability in co-operation  with the complainant pursuant to s.16(3) of the EEA. The WRC further held that the respondent discriminated against the claimant by treating him less favourably than other staff, by withdrawing teleworking arrangements from the complainant that the complainant had previously been approved for, after the complainant had experienced disablement.  See Mr A v. A Government Department 2008 ELR 354

The respondent failed to afford reasonable accommodation in the following ways:-

i                   The Company did not ask Medmark the right questions in the period when the claimant went out sick on 1/4/22 until March 2024.

The Company should have asked was the claimant fit to work and, if not, was the claimant otherwise fit to engage with the Company.

In response to the EE2 Form sent, the respondent clarified what it asked Medmark this question in commissioning the reports dated 28/3/24 and 13/6/24. It did not clarify what it asked Medmark in commissioning the reports 28/2/22 and 23/8/22.

ii.                The Company did not meaningfully engage with the claimant after 1/4/22 and before resignation other than through its solicitor. The Company did not communicate with a view to improving relations between the parties to ease her return to work.

The claimant was certified unfit to work from 1/4/22 until resignation on 1/8/24.

During this period, nearly all the contact between the claimant and the respondent was through solicitors.

In an email 6/2/22, the claimant made clear that she was not happy to have contact from Rahim Jima during this period (see RS1 p. 197) but she never stated to the Company or Insight HR that she didn’t want any contact from the Company generally.

On 28/10/22 the claimant’s solicitor sought mediation, which the Company did not agree to until 6/6/23.

On 21/2/24, the claimant solicitor sent a medical cert to the respondent solicitor saying that the claimant was fit to engage with the company.

The Medmark report 28/3/24 found that the claimant was unfit to work but “fit to engage with HR/management if required” (see RS1 p.432).

The Medmark report 13/6/24 similarly found that the claimant was unfit to work but “medically fit to engage in any meetings you wish may wish to arrange” (see RS1 p.461)

iii.               In or around August 2022, the claimant was removed from the respondent’s WhatsApp group.

At the WRC hearing it was suggested by the respondent that the membership of the group was composed of personal friends of Eoin Keary. This is clearly not true. The Claimant had given direct evidence that the said WhatsApp Group was a Group of over 50 Edgescan work colleagues and we refer to the WhatsApp conversation. The fact that the said Group is made up of Edgescan employees rather than Eoin Keary’s wide circle of friends is quite apparent from the name of the group alone which is ”EDGESCAN” .

iv.               The Insight HR report was unreasonably confined to the issue of whether the matters complained of constituted bullying and harassment. The investigation should have been wider and should have included an assessment as to how relations between the claimant and the employer could be improved to help her return to work (see para. 2.iii herein)

v.                The Company removed the claimant from the Laya Healthcare plan.

The policy was due for renewal on 1/3/24. On 8/4/24 the Company directed its payment towards the claimant’s policy be stopped. On 9/5/24, the claimant was notified by Laya that her membership was no longer going to be paid by Edgescan (these dates are referred to in the letter of resignation).

The claimant complained of this in an email 13/6/24 and a letter from her solicitor 20/6/24.

On 28/6/24 Philip Lee Solicitors said that the removal had been rectified. At the WRC hearing the respondent stated that Thomas Henry and Joan Lennon removed the claimant from membership of the Laya policy because there was no evidence that the claimant had a contractual entitlement to same and that when Rahim Jima became aware of the removal, he directed her reinstatement to the policy.

The Respondent booklet entitled “Miscellaneous Documents” which was produced on the 1st August 2025 (after the Claimant had finished giving her evidence) includes at Section A “Emails re. Laya Healthcare” and at page 33 onwards contains an email chain between Edgescan and Laya Healthcare from 9th July 2024 to 11th July 2024. It  conveniently does not include any of the relevant email chains from the time of the cancellation of the policy which was requested by the Company on 8th April 2024. It is submitted that adverse inferences should be drawn concerning the knowledge of and direct involvement of Rahim Jina in the cancellation.

The case can be applied in this respect. The withdrawal of Laya Healthcare cover at this time is comparable to the withdrawal of the teleworking arrangement in Mr A v. A Government Department (referred to at para. 10 herein)

In relation to paras. 11.i to 11.iv herein, had the Company acted properly, this may have made it possible for the claimant to return to work instead of resigning on 1/8/24. The case Mr A v. A Government Department (referred to at para. 10 herein) can be applied in this respect. While Mr A v. A Government Department held there was a delay in liaising with the claimant as to what was required to ease his return to work, the case herein concerns a failure to liaise with the claimant as to a return to work, not just a delay.

Whether the WRC can look at events occurring after issuing the WRC claim on 17/5/24 (the date the EEA claim was issued)

The EEA claim was lodged on 17/5/24. The WRC can look at events 17/5/24 -1/8/24 (the date of resignation) to corroborate allegations in relation to matters occurring before 17/5/24.

Kerrs Annoted Statutes under s.77 EEA states

“In Cooke v University College Dublin DEC-E2010-004, an Equality Officer ruled that these limits were ‘retrospective rather than prospective’. Accordingly, she could look at events after the complainant lodged his complaint form with the Tribunal, provided the subsequent events could be considered as ‘separate manifestations of the same disposition to discriminate’. In A School v A Worker EDA 2/2012, however, the Labour Court held that a complainant could only rely on alleged acts of discrimination which occurred before the presentation of his or her complaint to the Equality Tribunal for the purpose of seeking redress. The Court added that evidence tendered in relation to later incidents, which had “probative value” in respect to any facts in issue in relation to matters comprehended by the complaint at the time it was made, could be admitted..”

Detailed written submissions were delivered on behalf of the Respondent which included the following:

On 30 March 2022 the Complainant wrote to Mr Twohig advising she wished to make a formal complaint regarding communication she had received from Mr Jina “in the last few weeks”. Ultimately when she provided a detailed grievance, she also raised communications dating back to 2019 which she was raising for the first time. The grievance related to communications regarding the payment of wages, her return to work, her duties and in particular the condition of the office.

The Respondent engaged Insight HR to conduct an independent investigation pursuant to the Respondent’s handbook – Grievance – Dispute Procedures. The investigation was conducted by Marion Galvin head of workplace investigations at Insight HR. The Complainant agreed the Terms of Reference and signed off on the notes of her meetings. The Investigation was carried out in accordance with fair procedures and the Complainant was advised she could be accompanied by a work colleague or trade union representative. The Report was finalised on 22 July 2022 and the grievance was not upheld.

The Complainant went out on sick leave on 4th April 2022 and was out on leave throughout the investigation. She never returned to work prior to resigning from her employment on 1st August 2024. The Complainant was not certified as fit to return to work in advance of her resignation.

It is submitted that on a review of the documentation relied upon in the investigation it is clear that the matters being complained about were normal management interventions and the Respondent relies on the Judgement of Charleton J in the Ruffley case wherein he says ‘employer is entitled to expect ordinary robustness from its employees’.

The Respondent has had the Complainant assessed by an Occupational health specialist on a number of occasions. No disability has been identified and no reasonable accommodations in respect of an identified disability have been outlined. The Respondent places the Complainant on full proof of her disability.

• Occupational health assessment dated 14 July 2022. The employee remains unfit to work.

• Occupational health report dated 23 August 2022. The employee remains unfit to work. “It is however my view that she remains unfit to engage with the employer to discuss possible resolutions of her work-related concerns.”

By email dated 30 August 2022 the Complainant wrote to Mr Twohig complaining about the findings of the independent report. She queried whether there was anything else that could be done or “is that the end of the grievance process?”  By email dated 2 September 2022 Mr Twohig responded outlining that the company was satisfied the investigation was thorough, robust and independent. He went on to say that given that Medmark found that she remained unfit to engage with the employer the Respondent would need a certificate from her GP stating that she was fit to engage and also a positive fitness to return to work report from her company doctor. The letter went on to say that once she had been medically cleared to engage with the company and was due to return to work the company would make arrangements to address her concerns whilst also working with her to support her in-addressing any performance related issues. Performance related issues arose in the context of the investigation and certain other issues came to light while the Complainant was absent on sick leave. The letter concluded: “In the meantime, if there is any additional support that the company can provide to you, please make contact with me to discuss.”

On 28 November 2022 the Complainant queried whether she could be paid for accrued annual leave and Mr Twohig responded by email dated 6 December 2022 confirming that annual leave continued to accrue while she remained on certified sick leave.

On 31st March 2023 the Complainant lodged her first set of complaints which she ultimately withdrew 2 days before the hearing date in November 2023.

There has been ongoing extensive correspondence between the Complainant’s solicitor and the Respondents solicitors. Throughout that correspondence dating back as far as November 2023 the Complainant’s solicitor has made a general assertion that the Complainant suffers from a disability. This was the first time that the Complainant had alleged that she suffered from a disability, and this was communicated to her solicitor in January 2024. Since that date the Respondent’s solicitor has been seeking detail of what disability the Complainant is asserting that she has and what reasonable accommodations she is asserting she has not been given.

An Occupational health Assessment dated June 2024 confirmed that she remained unfit to work and suggested “In relation to work place accommodations you may consider facilitating Ms Bracken with a phased return to work once she has been certified medically fit for work”. No other accommodations were identified and the Complainant remained unfit to return to work.

The Complainant resigned on 1st August 2024. She did not raise a grievance in advance of her resignation.

Legal Submissions

Discrimination Claim

[Section 6 (1)  (2) and 16 (3) quoted]

It is submitted that the Complainant must in the first instance identify a comparator. She must also establish that an act of discrimination occurred within the cognisable period of the claim which is between 18th November 2023 and 17th May 2024 and that she was suffering from a disability during that period.

Concern v Anthony Martin ADE/05/15, Section 85A and Southern Health Board v Mitchell [2001] E.L.R. 201 relied upon.

It is submitted that the Complainant has not provided primary facts from which discrimination can be inferred. She raised a grievance and the Respondent investigated it. She has been absent on sick leave since May 2022 and has not identified any act of alleged discrimination during the cognisable period.

Reasonable Accommodation

[The following cases and sources were cited:

C-270/16, Ruiz Conejero v Ferroser Servicios Auxiliares S.A. 2018 IRL372

Swan O’Sullivan v Counihan EDA 10/2018

Council Directive 2000/78/EC of November 27, 2000

Chacón Navas -v- Eurest Colectividades SA [2006] 3 CMLR 40

HK Danmark (Ring) -v- Dansk Almennyttigt Boligselskab DAB [2013] 3 CMLR 21

Fag og Arbejde -v- Kommunernes Lands forening [2015] 2 CMLR 19

Re Article 26 of the Constitution and the Employment Equality Bill [1997] 2 IR 321 ]

No medical evidence was ever provided to the Respondent to support a needfor reasonable accommodation.

It is not sufficient for a Complainant to merely allege a medical condition. What is required is that the effects (manifestations or symptoms) of the condition have a real adverse impact on the Complainant’s professional life. The Complainant has a preexisting condition and in medical reports “attributes some of these symptoms to work-related stressors”. Her activities of daily living are “largely unrestricted”.

As the burden of proof is on the Complainant, the Respondent awaits proof of the Claimant’s alleged disability. The Complainant awaits proof of an act of discrimination within the cognisable period and also proof that she was suffering from an alleged disability during that period. The Supreme Court in Nano Nagle confirmed that a claim for failure to provide reasonable accommodations is not a stand-alone claim.

Constructive Dismissal

Section 1 of the Unfair Dismissals Act defines constructive dismissal as:

“The termination by the employee of his Contract of Employment with his employer … in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or is or would have been reasonable for the employee, to terminate the Contract of Employment …”

In short, a constructive dismissal case may arise where the employee felt their employer’s conduct was so untenable that they have no option but to resign or, again as a result of employer conduct, the employee has suffered a repudiatory breach of their terms and conditions of employment. As the Complainant is alleging constructive dismissal, the fact of dismissal is in dispute and therefore the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify him terminating his employment.

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach

resign his position, often referred to as the “Contract test”. This records that an employer be “guilty of conduct which is a significant breach going to the root of the Contract of Employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the Contract, then the employee is entitled to treat himself as discharged from any further performance” as held in Western Excavating (ECC) Limited v Sharp [1978] IRL 332.

Secondly there is an additional reasonableness test which may be relied upon as either an alternative to the Contract test or in combination with that test. This test asks whether the employer conducted his/her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with any longer. If so, she is justified in leaving. The question for the adjudication officer to decide is whether, because of the conduct of the Respondent, the Complainant was or would have been entitled, or it was or would have been reasonable for her to terminate the Contract of Employment. In constructive dismissal cases, the Court must examine the conduct of the parties. In normal circumstances a Complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably. It is submitted that in the instant case, the Complainant did not act reasonably in terminating her employment and claiming unfair dismissal. She remained unfit to return to work up to the date of her resignation and the occupational health assessment dated 13th June 2024 confirms this. The only suggested accommodations are a phased return to work when she is fit to return.

Conclusion

It is submitted that on a review of the documentation relied upon in the investigation it is clear that the matters being complained about were normal management interventions and the Respondent relies on the Judgement of Charleton J in the Ruffleycase wherein he says ‘employer is entitled to expect ordinary robustness from its employees’. Charlton J’s specifically distinguishes normal management interactions from bullying: ‘Correction and instruction are necessary in the functioning of any workplace and these are required to avoid accidents and to ensure that productive work is engaged in. It may be necessary to bring home a point by requesting engagement in an unusual task or longer or unsocial hours. It is a kindness to attempt to instil a work ethic or to save a job or a career by an early intervention. Bullying is not about being tough on employees. Appropriate interventions may not be pleasant and must simply be taken in the right spirit. Sometimes a disciplinary intervention may be necessary’.

The Respondent appointed an Independent investigator to investigate the grievance, and the grievance was not upheld. The Complainant has no issue with the Terms of Reference or the process until she received the draft report and did not like the outcome.

There is absolutely no evidence that the Complainant has been discriminated against because of an alleged disability.

The Respondent has dealt with the Complainant’s annual leave and public leave entitlements in line with her contract of employment and the requirements of the Organisation of Working Time Act.

Following the conclusion of the hearing the parties elected to provide written closing submissions. On behalf of the Respondent the following submission was delivered:

Unfair Dismissal Claim

The Complainant resigned from her employment and therefore is claiming that she was constructively dismissed. In the submissions of the Complainant, she relies on Carthy v Clydale Investments UD 1091/2004 which highlighted that it will be very difficult for a Complainant to discharge its burden of proof if they have not themselves “fully attemptedto raise complaints and exhaust grievance mechanism at an internal and local level”. The submissions state that the Complainant “raised complaints and continually sought to engage with the Respondent over a 30-month period in relation to the purported conduct alluded to in her submission prior to her resignation”. The evidence of the Complainant does not support that assertion and supports the fact that the Complainant did not fully attempt to raise complaints in advance of her resignation. In particular on 18th June 2025 the Complainant confirmed in her evidence that she had not raised a formal grievance in relation to her workload or role or hours. She confirmed that when she raised the formal grievance against Mr Jina, she did not include a grievance about her hours or workload at that stage. She also confirmed that she had not raised any further formal grievance in advance of her resignation. Furthermore, it is a matter of fact that the first time that the Complainant set out what she was looking for in order to return to work, namely  “alterations to her reporting structure, working hours or working location” was in her submissions delivered on the 9th March 2025 over 7-months after she had resigned from her employment. She also stated in her evidence that she was looking for ‘reassurance that it wouldn’t happen again, the constant attacking. Wanted reassurance from the company and support”. The Complainant has been legally represented since 28th October 2022. At no time has her solicitor in the voluminous correspondence set out what the Complainant was seeking in terms of returning to work. As outlined above, the Respondent only became aware when the written submissions were provided 7 months after her resignation that she was looking for “alterations to her reporting structure, working hours or working location” none of which had been outlined by either the Complainant or her solicitor in advance of her resignation.

The Complainant went on to say in her evidence of 18th June that the “only person I didn’t want contact with was Rahim Jina, if Eoin Twohig contacted me, it would be fine, but nobody contacted me”. This is particularly relevant given the Complainant’s evidence on the 18th June that she believed that she should have been given “some leeway” after a ‘serious operation” and not have been contacted by Mr Jina in 2019 when her medical cert had lapsed and she indicated she would return to work but had not. However, during the current period of medically certified leave in which it is clear she is not fit to work, the Complainant is complaining that the company has not been in touch with her.

The Complainant accepted that Insight HR sent an email to the company stating that she did not want to be contacted by the company. Furthermore, she herself contacted Mr Twohig on the following dates regarding her social welfare

1                 29 April 2024

2                 30 April 2024

3                 02 May 2024

4                 03 May 2024

The Complainant contacted Mr Twohig regarding her annual leave on the following date:

•                 4 April 2024

She also replied to correspondence regarding her annual leave and attendance at an occupational health appointment from Rahim Jina in March 2024.

At no stage during her various communications with Mr Twohig did she raise any complaint or indicate what she needed in order to return to work or reach out to Mr Twohig to have a discussion. Furthermore, at no stage in advance of her resignation did her solicitor communicate what accommodations she was seeking while at all times and up until 15 September she was certified as medically unfit to work.

Mitigation of loss

The Law

Section 7(1) of the Unfair Dismissals Acts provides in relevant part that where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: Reinstatement.

Re-engagement.

i. If the employee incurred any financial loss attributable to the dismissal payment to him by the employer of such compensation in respect of the loss (not exceeding an amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under Section 17 of this Act) as is just and equitable having regard to all the circumstances,…

ii. Without prejudice to the generality of subsection (1) of this Section, in determining the amount of compensation payable under that subsection regard shall be had to -

(a) …

(b) …

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid.

In determining the level of compensation that should be awarded in Unfair Dismissal cases, the Labour Court has been critical of people who have failed to provide proper documentation to support alleged attempts to seek alternative employment and thereby mitigate their loss of income. The Court consistently relies on the EAT case of Sheehan and Continental Administration Company Limited (UD858/1999) which stated as follows: “A Claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work… The time that a Claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”

Cases in which the Labour Court relied on Sheehan include UDD2242 Access IT CLG/Access IT and Miss Andrea Galgey, where the Court relied on Sheehan in determining the level of award in circumstances where the Respondent did not dispute the dismissal. The Complainant provided the Court with printed screenshots of correspondence regarding a reasonably significant number of jobs about which she made enquiries and/or for which she applied. She told the Court that she applied for hundreds of positions but, in the absence of any documentary evidence of same being produced to the Court to substantiate this statement, the Court stated that they had “no option” but to disregard it and to proceed to make its decision based on the documentary evidence given to it. While the documentation supports a claim of reasonable effort on the part of the Complainant, it falls short of the requirements enunciated in the Sheehan case as set out above. Weighing all of these factors the Court determined that the Respondent should pay a sum of €15,000 to the complainant for her unfair dismissal.

In determination number UDD2238 between St John of God Hospital Limited and Ms Catherine McDowell the Court stated “the Act at Section 7 requires the Court, when measuring the event of compensation which is just and equitable having regard to all the circumstances, to have regard to the measures adopted by the Appellant to mitigate her loss. The law has been clarified in many decisions both of this Court and the EAT to the effect that a Claimant must make a real effort to mitigate his or her loss.” The EAT in Sheehan and Continental Administration Company Limited (UD858/1999) held as follows: “A Claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work… The time that a Claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.” The Appellant is required to establish that she made every effort to mitigate her loss arising from her dismissal. The Court is provided with no documentary evidence of applications made or other efforts to secure alternative employment in the period following her dismissal. She told the Court in evidence that she had made informal or formal application with up to 10 employers and that she had secured employment October 2020 for 15 hours per week at a lesser rate of pay than had been enjoyed by her in the Respondent’s employment. She  made no submission that she had made any continuing efforts to mitigate her ongoing losses after October 2020.” The Court, having accepted the financial loss suffered by the Appellant was in the amount of €55,000, concluded that she had failed to meet the standard of effort required to mitigate that loss and decided to reflect that failure in the amount of compensation to be awarded. The Court considered that a reduction of 55% was just and equitable. The Court therefore concluded that the level of compensation which was just and equitable in all the circumstances was €25,000.

In a recent case UDD2237 Doyles Veg Prep Limited -v- Petru Fodor, in making an award of compensation, the Court took into account the lack of evidence submitted to the Court in relation to the Complainant’s efforts to mitigate his losses. It also took into account the fact that for much of the period since his employment was terminated, the Complainant was unavailable for work because of ill-health and family reasons. In all of the circumstances the Court found that the amount of compensation that was just and equitable was €2,000.

The Law applicable to the evidence given by the Complainant.

In relation to mitigation of loss it is common case that the Complainant was certified as unfit to work until the 15 September 2024 and commenced work some 2 weeks later. She did not apply for any role and took up employment in her husband’s company as a book-keeper, having previously been employed as an office manager, where she works part time. She provided no documentary evidence of any attempt to find alternative work at a similar salary to the one she held with the Respondent and is seeking to secure the difference in the salary received through this claim. The Complainant’s evidence on 18 June was that she had not applied for any other work notwithstanding an ongoing duty to mitigate her losses. She stated that “Since I’ve been working in my husband’s company, I’m trying to build my confidence again’. It is submitted that if the Complainant is alleging (as she appears to be) that the loss of confidence was caused by the Respondent’s actions, that is a matter properly litigated in the personal injuries case. In relation to her Unfair Dismissal case, she was only out of work for 2 weeks and did not apply for any jobs at all. In the circumstances it is submitted that the Complainant has clearly absolutely failed to mitigate her losses.

Discrimination claims on the basis of her disability in the conditions of employment and in failing to provide her with reasonable accommodation

It is unclear from the evidence provided by the Complainant how it is alleged that she was discriminated on the grounds of her disability in her conditions of her employment. On 18th

 June 2024 the Complainant gave clear evidence in response to a question from the Adjudication Officer that the Respondent would not have been aware that she had previously been ill with mental health issues. Therefore, on her own evidence, the Respondent was not aware of any alleged disability at the time she went on sick leave. It is common case that the first time that the Respondent became aware that the Complainant was alleging she had a disability was when they received complaints lodged on the 31st March 2023 in which she alleged that she had been discriminated on grounds of her disability and that the Respondent had failed to provide reasonable accommodation. The Respondent’s solicitor wrote immediately seeking details of both the disability and the accommodations being sought. No response was received, and the complaints were withdrawn on 28th November 2023 two days before they were due to be heard.

The chronology in relation to the alleged disability and reasonable accommodations is as follows:

On 19 December 2023, Cosgrave Solicitors assert that the Respondent “has failed to take any steps to accommodate our client’s disability to date”. The Respondent sought details of the disability on 9 January 2024. They confirm that the Complainant had not informed the Respondent that she was suffering from a disability, nor had she requested accommodations be put in place. No information on the alleged disability or accommodations sought is provided by Cosgrave Solicitors.

Over 5 months later by email dated 24 May 2024, Niall Cosgrave of Cosgrave Solicitors stated, “Your letter of 9 January had further claimed that your client was unaware of any disability prior to our letter of 18 December 2023 which is also surprising given our previous WRC application lodged on 31 March 2023 including an equality complaint for failure to make reasonable accommodations for a disability. Your client had also had her medically assessed on a number of occasions.”

By letter dated 7 June 2024, the Respondent replied stating inter alia, “For the avoidance of doubt, our client is acutely aware of its obligations in respect of the provision of reasonable accommodation in circumstances where an employee may be suffering from a disability. However, while you continue to refer to our client’s failure to provide reasonable accommodation, you fail to detail what reasonable accommodation your client allegedly requires, nor have you detailed an alleged disability from what she suffers that has resulted in her need for reasonable accommodation. We are acutely aware that the previous WRC claim lodged by your client on 31 March 2023 and ultimately withdrawn by your client on 28 November  2023 (two days prior to the scheduled Hearing date) included a complaint under the Employment Equality Act for failure to make reasonable accommodations. However, as previously referred to, there was no effort made at any point to substantiate the allegations included in that claim form. This is despite numerous requests from our office for detailed submissions on behalf of your client. We note that you continue to refer to the allegations in the most general of terms including in the WRC claim form lodged on 17 May 2024, which we refer to further below. In relation to the claim made under the Employment Equality claim – as per the above and previous correspondence in this matter, our client is unaware as to what disability your client is alleging that she has and what reasonable accommodation she has sought.

Further and with respect, it appears that the claims of 17 May 2024 have not been submitted in good faith ...finally and without prejudice, the position set out above we request that submissions on behalf of your client be furnished in early course as our client requires sight of the specifics of your client’s complaints.”

Our client has received a copy of the claim form submitted to the WRC by yours on 17 May 2024. We note that:

•                 By email dated 20 June 2024, Neil Cosgrave responded and stated that he did not intend to continue “this protracted correspondence other than to say we do not accept your position”.

•                 By letter dated 28 June 2024, the Respondent’s solicitors provided Cosgrave Solicitors with a copy of the Medmark report dated 30 June 2024 and noted that there was no disability identified in the report and the only accommodation referred to was a potential phased return to work once the Complainant had been certified medically fit for work.

•                 By letter dated 5 March 2025, the Respondent again sought submissions in respect of the various claims raised by the Complainant. The letter confirmed, “To date, we have not received any detail or evidencing material in respect to the claim submitted by your client, or the basis for making these claims. ...As was the case in March 2023, our client remains unaware as to what disability your client alleges that she has, and/or

 what reasonable accommodation measures she has sought. This remains the position, despite us having requested the above information on numerous occasions.”

•                 No response was received to the above letter. A further letter was sent on 28 March 2025 stating, “As outlined in previous correspondence, our client has not been provided with the relevant details or evidencing material concerning your client’s claims, despite us having requested same on numerous occasions. The claim forms submitted to the Workplace Relations Commission on 17 May 2024 and 24 September 2024 lack sufficient detail to allow a comprehensive understanding of your client’s allegations. We now require a copy of your client’s submission as a matter of urgency.”

Relevant Evidence

In the Submissions received for the first time on 9th March 2025 a few days before the hearing, the Complainant set out for the very first time that she was seeking “alterations to her reporting structure, working hours or working location”. However in her evidence on 1st August when asked what request for reasonable accommodations had the Complainant made, she responded, “The company didn’t give me any accommodations at all.” When Counsel for the Respondent reiterated, “What did you look for? What reasonable accommodation did you seek?” the Respondent answered, “I didn’t seek any reasonable accommodation. I felt that was up to the company.” When the question was reiterated, the Complainant confirmed that she did not seek reasonable accommodation.

She further confirmed that she did not want Rahim Jina to contact her from the company, and yet in her evidence she outlined that she expected HR to contact her. It was confirmed in evidence by Mr Jina that he is in charge of HR in the company.

Preliminary Objection

The Complainant has not set out either in her evidence or submissions in what way she was discriminated against in her conditions of employment because of her alleged disability. The Complainant remains on full proof of her disability and has not provided a comparator to establish that she was treated less favourably than someone who does not have a disability or who has a different disability.

In respect of the claim for failure to provide reasonable accommodations the Respondent relies on the decision of the Supreme Court in Nano Nagle School v Marie Daly 2019 IESC 63 in which it made clear at paragraph 105 that there is no mandatory duty of consultation with an employee and furthermore that there cannot be a standalone case for the absence of consultation in respect of reasonable accommodations.

Without prejudice to the above

The Respondent relies on its earlier legal submission which conform that an employer must have knowledge of a disability, the extent of any disability and the reasonable accommodations sought. Furthermore, in ADJ00039597, Hannah Duignan -v- Lough Rynn Castle Limited, the Complainant argued that, despite being on notice from 22 March 2022 (by the filing of the Complainant’s second complaint and written correspondence) of the Complainant’s desire to return to work, the Respondent failed to take any steps to facilitate this between that date and 21 June 2022. In failing to do so, the Respondent failed to make reasonable accommodation for the Complainant’s disability. The Adjudication Officer found that arranging for the Complainant to be medically examined was a proactive step taken by the Respondent to assess the Complainant’s capacity to work, and this examination was directed by the Respondent despite the Complainant’s own doctors finding that she was unfit for work. The Adjudication Officer also found that the medical examination confirmed the Complainant’s doctor’s opinion that the Complainant was unfit for work. In such circumstances, no reasonable accommodation for the Complainant’s disability was open to the Respondent to make. The Complainant was, and continued to be, unable to work because the state of her health prevented it. In those circumstances, the Adjudication Officer found that there was no prima facie case of discrimination proven by the Complainant. The Complainant, Miss Duignan, worked for Lough Rynn Castle Limited from 2008 until she went on stress-related sick leave in March 2017 and remained on certified sick leave at the time of the Hearing of the case. Miss Duignan took a claim that the Respondent’s failure to contact her to ascertain her ability to work, or to have her medically examined during a period in excess of five years, constituted a failure to make reasonable accommodation for her disability, being anxiety and depression. The Adjudicator held that, in order for the Complainant’s claim to succeed, she required three premises to be met:

•                 That the Respondent knew the Complainant had a disability;

•                 That the Respondent knew that the Complainant wanted to return to work; and

•                 That the Complainant was fit to return to work and that the Respondent was aware of this.

The Adjudicator found that the Respondent was not aware that the Complainant had a disability until she lodged the WRC complaint form on 9 February 2019. She also found that a sick certificate is not an implied request to return to work. Alternatively, it is medical proof that a person is sick and in the opinion of the doctor is unable to work because of that sickness. In relation to the third element, the Adjudicator found that the Complainant continuously submitted sick certificates and at no time did either she or her doctor indicate that she would be fit to return to work on lighter duties. The Adjudicator held that the claim was out of time as no indication occurred in the six months before she lodged the complaint. However, for clarification, the Adjudicator went on to hold that, if the claim were within the time limit, it would not have succeeded.

The Complainant confirmed that she did not seek reasonable accommodation from the Respondent at any stage. On the various occasions that the Complainant’s solicitor asserted that the Respondent was not providing reasonable accommodation (as outlined above) he refused to outline details of either the alleged disability or the accommodations sought. It is submitted, on a basic assessment of the Respondent’s actions they have fulfilled their obligations by having the Complainant medically assessed and seeking details of any accommodations required in circumstances where the Complainant and her solicitor have refused to outline what she is looking for. The only accommodation outlined by a medical practitioner was a phased return to work when she was fit to return. No medical certificate provided from the Complainant’s own Doctor set out any accommodations.

Conclusion

The claim under the Unfair Dismissal Act should fail as the Complainant resigned without providing the Respondent with any detail whatsoever about what she was seeking to enable her to return to work. She raised no further grievance and remained at all times unfit to work.

In respect of the discrimination claim the Complainant has not identified how she was discriminated in her conditions of employment and who her comparator. In respect of a failure to provide reasonable accommodations a failure to consult is not a stand-alone claim. In any event the Respondent could not provide accommodations in circumstances where the Complainant and or Solicitor repeatedly refused to provide details of the accommodations she was seeking. The complainant herself accepted in evidence that she did not seek reasonable

accommodations, and no medical evidence was provided by the Complainant’s doctor seeking any accommodations.

General Commentary on the Nature of the Claims Made

The Resignation Letter

The Complainant resigned by way of a letter addressed to Mr Eoin Twohig, The Respondent’s CFO. Although undated, it was agreed that the letter was sent on the 1st of August 2024. The text of the letter was as follows:

“I am writing to tender my resignation due to the Company’s conduct and I now regard myself as constructively dismissed.

I had enjoyed my initial years with the company, and I believe that I always performed my role to the highest standards. Unfortunately, when my grievances arose, similar high standards were not observed by the company and I now find myself more than two years further on and rather than matters being resolved, I am in a position where I remain on certified sick leave and yet the company (by letter from [the Respondent’s] solicitors dated the 28/06/2024} has denied that there is any disability. This is beyond comprehension and is particularly egregious when the company was first put on notice of this when I lodged a WRC Application on 31st March 2023 which included an equality complaint for failure to make reasonable accommodation for a disability. Your solicitors then wrote to me by letter on the 09/01/2024 claiming that you were unaware of any disability prior to my solicitor’s letter of 18/12/23.

I have sought to fully engage with you at all times with the various processes whereas the company has not. I engaged fully with the internal grievance procedure. When the grievance case was conducted, it stated I was poorly performing and that my lack of performance would be addressed as soon as I returned to work. [Reference to mediation – redacted]

Most recently, you have suggested that I should engage with your employee assistance programme through Laya Healthcare and yet you clearly took a decision to cancel my membership and then when it was brought to your solicitor’s attention, you claimed that it was an administrative error. For the record, the following is the actual chronology of events:

-        09/05/24 – I was notified by Laya that my membership was no longer going to be paid by {the Respondent].

-        14/05/24 - I notified Laya that I could not afford the policy and I cancelled it with immediate effect.

-        13/06/24 – Eoin T advised me to avail of the company Employee Assistance Programme with Laya despite the fact that I was no longer on the [the Respondent’s] policy.

Eoin T advised there was an administrative oversight ..as the contribution that was paid by [the Respondent] was cancelled on the 08/04/24 without notifying me. The renewal for this policy is 1st March every year. The company’s hostile and combative conduct has continued and indeed has become worse in recent months in respect of my engagement with occupational health specialists.

On a personal note, I would like to express to you how saddened and disappointed I am to be writing this letter. Throughout my employment I always put the company first and my loyalty and commitment is evidenced by my impeccable record and my genuine love of my job. I did everything that was asked of me including taking in extra duties and additional hours. I forewent pay increases and I made a huge contribution towards dealing with an increasingly large workforce while adapting my role and skill set to accommodate the many changes following the extension of the business. All I ever expected in return was for the company to extend me the same courtesy in terms of honouring my contract of employment and observing the most basic levels of professional courtesy and respect. In violating all these basic rights, I no longer have any trust or confidence in the company.

Furthermore, the company has called into question my performance despite there never being a single issue raised prior to me going on sick leave.

It should also be noted that I was in receipt of an annual salary increase without fail. I was also in receipt of annual performance related bonuses which I also received without fail. These were stopped when I raised my grievance and were never restored.

The company has also made allegations about my husband’s business which are entirely unsubstantiated and indeed defamatory.

Through your solicitors you have made it clear that you will not address any of the issues until I am certified fit to work, but as a matter of reality, I will never be fit to return to work so long as these issues remain outstanding which is a quintessential Catch 22 situation. I engaged with your appointed Occupational Health Specialist with a view to try to advance matters. In return you have denied the existence of any disability despite clear medical evidence as set out in the Report you obtained from Medmark and sated 13/06/24. The report noted that my “underlying medical condition remains unstable”.

Having given the matter serious consideration, I have lost all trust and confidence in the company and its ability to resolve the impasse. Therefore, I wish to advise you of my resignation due to the company’s conduct and I now regard myself as constructively unfairly dismissed. Further correspondence will follow from my solicitors in early course.

On a final note, I would be obliged if you could forward to me full details of all and any accrued holiday and bank holiday payments which now fall due.“

This letter is relevant to all of the claims made by the Complainant. Those claims are based on discrimination on the disability ground and the failure to provide reasonable accommodation pursuant to Section 16 (3) of the Employment Equality Act 1998 (as amended) (“the EEA”) and constructive dismissal pursuant to the Unfair Dismissals Act 1977 (as amended) (“the UDA”). Because of the manner in which the resignation letter is written and the way in which the case was presented by the Complainant, it is quite difficult to separate the two issues. However, a theme which is common to both claims is the dilemma in which the Complainant found herself following the conclusion of the independent investigation. This dilemma was characterised as a “Catch 22 situation” in the sense that the circumstances presented a circularity, whereby the Respondent would not address the Complainant’s outstanding issues until she was ft to return to work, but the Complainant’s circumstances were such that she would not return to fitness until those issues were resolved. In the present case the separate issues of reasonable accommodation on the one hand and unresolved grievances on the other became somewhat conflated. However the two are distinct.

The statutory provisions, case law and best-practice norms relating to reasonable accommodation are specific and flow from Section 16 (3) of the EEA and are essentially driven by medical circumstances whereas grievances - whether of an interpersonal or contractual nature - are regulated by the jurisprudence which has evolved in dismissal law and in particular from the concept of constructive dismissal. The latter concept reflects a situation where an employee may deem him/herself dismissed because of a fundamental breach of contract by the employer or where because of unreasonable conduct by the employer, the employee is left with no choice but to resign. The adjudication of this issue inevitably leads to an examination of the conduct of both parties in relation to the performance of the contract of employment. Such an examination may include a consideration of whether a legal duty such as the obligation to afford reasonable accommodation has been breached but it is not limited to that issue alone. That said, where there is evidence of a clear breach of a legal duty by the employer, such a breach is theoretically capable by itself of constituting a fundamental breach or repudiation of the contract of employment and/or unreasonable behaviour such as to establish a constructive dismissal, and in addition such a breach may also be capable of attracting compensation in its own right.

In the present case the Complainant contends that the Respondent breached its statutory duty to provide her with reasonable accommodation for her disability, and it is further argued that this breach also constitutes (whether in whole or in part) grounds for constructive dismissal. Accordingly, it is necessary to first address whether the Respondent breached its statutory duty in relation to reasonable accommodation.

The Reasonable Accommodation Claim

Statutory Provisions

S 16 EEA (where relevant to the present case) provides as follows:

“16.Nature and extent of employer's obligations in certain cases

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

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

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

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

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

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

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

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

(i) the financial and other costs entailed,

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

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

(4) In subsection (3)—

…“appropriate measures”, in relation to a person with a disability—

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

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

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

Relevant Facts, Circumstances and Communications

The Respondent organised medical assessments of the Complainant on four occasions. The Complainant was declared unfit for work on each occasion. The Complainant was certified by her own doctor as unfit for work continuously from the 1st of April 2022 up to and including the date of her resignation.

By letter dated the 28th of October 2022, the Complainant’s solicitors issued a ‘letter before action’ to the Respondent alleging personal injury. A P.I.A.B. Medical Report from the Complainant’s General Practitioner dated the 30th of November 2022 was also delivered.

A claim was initiated through the WRC on or about the 31 March 2023. It is common case that the Complainant made an equality complaint for failure to make reasonable accommodations for a disability. No specifics of that Complaint were provided. 

A mediation took place in July 2023 which did not generate a resolution to the dispute as it then stood.  

On the 28th of November 2023the Complainant withdrew the WRC Complaint initiated on the 31st of March 2023.

In 2024 the issue of the Complainant’s fitness to engage emerged in three documents:

By letter dated the 4th of January 2024 addressed to the Complainant’s solicitor, the Complainant’s doctor advised as follows:

“This letter is to confirm that although [the Complainant] is unfit to work at present she is fit to communicate with her employer”

It was confirmed at the hearing that this letter was not sent immediately on receipt but was emailed to the Respondent’s solicitors by the Complainant’s solicitors on the 21st of February 2024. 

The Complainant served civil proceedings for personal injuries by way of Persona Injury Summons on the 15 March 2024.

The Medmark Report commissioned by the Respondent dated the 28th of March 2024 stated:

“… [The Complainant] has been absent from work since March of 2022 due to symptoms in keeping with a mental health condition. She attributes some of these symptoms to work-related stressors. Naturally I am unable to validate this, I merely mention it as it was central to our discussion and her concerns today.

She is linked in with her GP and is proactive in her treatment; she has been compliant with all recommendations given. She reports that her symptoms are still persisting. Her activities of daily living are largely unrestricted.

Her mental state examination today was in keeping with the above history.

Fitness for Work - Restrictions / Accommodations

In my opinion, [The Complainant] remains medically unfit for work.

She is fit to engage with HR/management if required.

I have discussed employee assisted programme (EAP) with her and I would be grateful if you could link in with her in regards its access.

I have also advised her to link back in with her GP regarding her treatment.

I recommend reviewing her in 6 weeks' time to assess her progress.”

Another WRC Complaint Form was delivered on behalf of the Complainant on the 17th of May 2024.

The report from Medmark of the 28th of March 2024 was forwarded by the Respondent’s solicitors to the Complainant’s solicitors by email dated the 22nd of May 2024.

The Respondent’s solicitors, in a letter to the Complainant’s solicitors dated the 7th of June 2024, sought detailed submissions supporting this claim including the nature of the disability and the accommodations which were being sought. 

A follow-up assessment with Medmark generated a further report dated the 16th of June 2024 which stated: 

“[The Complainant] is on long term sick leave since 2022 due to an adjustment reaction related to allegations of workplace problems.

[The Complainant] remains under the care of her GP and remains on prescribed medications. Despite this her symptoms persist and her underlying medical condition remains unstable.

[The Complainant] tells me there are ongoing matters in relation to her allegations of work place problems.

In my opinion [The Complainant] remains unit for work. However in my opinion [The Complainant] is medically fit to engage in any meetings you may wish to arrange.

I have had a long discussion today with [The Complainant] in relation to what additional support measures I recommend she put in place to optimise her recovery.

Specifically I have advised her to engage in mindfulness and other stress anxiety supports.

I understand from your recent communication an EAP service is available. Please provide details of this service to [The Complainant] as I believe this may assist in her recovery.

In relation to a timescale for returning to work. It was not possible at this time to accurately predict this as [The Complainant]’s medical condition remains un stable.

I also understand there are a number of on going processes in relation to [The Complainant]’s allegations of work difficulties. Naturally these processes contribute additional stress due to the nature of the matters.

In relation to work place accommodations you may consider facilitating [The Complainant] with a phased return to work once she has been certified medically fit for work.

I am happy to re-evaluate [The Complainant] in 3 months time.”

By letter dated 28th of June 2024, the Respondent’s solicitors forwarded the Medmark report to the Complainant’s solicitors and it was asserted that no disability was identified in the report and the only accommodation referred to was in relation a potential phased return to work once the Complainant had been certified medically fit for work. 

The Complainant resigned on the 1st of August 2024. The claim for Unfair dismissal was then initiated on or about the 26th of September 2024 which was consolidated by the WRC with the existing discrimination claim delivered on the 17th of May 2024.  

Submissions, Evidence and Findings

The Complainant relies on the decision of the Labour Court in A Worker (Mr O) v An Employer (No.2)EED0410; Reported at[2005] ELR 132 (“the Mr. O Case”). The Complainant’s counsel rightly submits that “The case is authority that the treatment of an employee after the disability is known could be held to be discrimination”. However, the facts of the Mr. O Case are significantly different to the facts of the present case in one very particular regard. In the Mr. O Case, the Complainant returned to work. He did so, as the decision recites, in circumstances where: “the complainant's consultant psychiatrist issued a letter advising that the complainant was fit to return to work but should do so on a phased basis”. In the present case there was no such certification by the Complainant’s doctor and in fact the opinions offered by the latter did not diverge significantly from those offered by Medmark. According to the Complainant’s doctor she was fit “to communicate with her employer”. Medmark, in the March 2024 report, offered the opinion that the Complainant was “fit to engage with HR/management if required” and in the June 2024 Report; that she was “medically fit to engage in any meetings [he Respondent] may wish to arrange”. However, both the Complainant’s doctor and Medmark expressed the view that the Complainant was unfit for work.

The solicitors for the parties engaged in correspondence regarding the issue of reasonable accommodation. The Complainant’s resignation letter of the 1st of August 2024 took exception to the fact that the Respondent had “denied that there [was] any disability”, The Complainant’s resignation letter reflects previous communications, to the effect that the Respondent was aware that the Complainant was alleging discrimination and failure to accommodate her disability. However, at no stage was the disability identified by the Complainant nor was any medical opinion provided as to what accommodations were considered appropriate to accommodate it. This raises the question as to what obligations fell on the Respondent at any stage up to and including the date of the Complainant’s resignation. On this issue, Counsel for the Complainant in oral submissions, offered the view that a disability requiring reasonable accommodation generates a “shared onus” as between the employee and employer and again I find myself in agreement with this proposition. I also accept the statements quoted regarding the nature of the reasonable accommodation process as cited from the cases of Kennedy v. Stresslite Tanks Limited Dec-E2009-078, Ms X v. A Nursing Home DEC-E2010-090, A Government Department v. A Government Worker [Note Correct Citation is: EDA061,  Mr A v. A Government Department [2008] E L R 354 and Mr O v. Industrial Waste Management Company[2014] 25 ELR 106 . However, when one compares  the facts of the present case to those of the cases cited, it is evident that the Complainant in the present case did not herself participate in the process beyond alleging disability discrimination and the failure to provide reasonable accommodation and initiating claims which were not particularised at any stage before the employment was terminated by the Complainant.

Although a medical diagnosis of “an adjustment reaction” was made in the final Medmark Report which indicated the nature of the disability, this information did not come from the Complainant’s own doctor. When specifics of the Complainant’s disability were sought, this was interpreted as a denial of the disability whereas the better interpretation would have been the Complainant was being put on proof of this and all aspects of her claim. The identification of the disability was only one aspect of the specifics sought. Even if the evidence available as of the 1st of August 2024 was such that the existence of a disability was undeniable whether because of the mention of the medical term “adjustment reaction” or whether it was otherwise self-evident from the length of absence and continuous medical certification, the fact remained that the Complainant was unfit for work and thus, as a medical fact, she was not in a position to return to work.

The only medical information offered by the Complainant’s doctor was contained in a letter to the Complainant’s solicitors indicating that she was fit to communicate with her employer but there was no suggestion as to what such a communication would entail or to what end. As far as the advice from Medmark was concerned, it was noted in March 2024 that in relation to the Complainant’s “mental health condition” that  she “attribute[d] some of these symptoms to work-related stressors” but the next sentence states  “Naturally I am unable to validate this, I merely mention it as it was central to our discussion and her concerns today”. In the final Report in June 2024, it was noted that there were “a number of on going processes in relation to [The Complainant]’s allegations of work difficulties. Naturally these processes contribute additional stress due to the nature of the matters” Again however the next sentence is of importance: “In relation to work place accommodations you may consider facilitating [The Complainant] with a phased return to work once she has been certified medically fit for work.” {Emphasis added).

Unlike in the Mr. O Case, the Complainant in the present case was not medically fit for work and there was no medical evidence to suggest otherwise. The reference in the Complainant’s doctor’s letter to the Complainant’s fitness to “communicate” came after the statement that she was unfit for work and the only other advice available to the Respondent (from Medmark) was that the Complainant’s medical condition remained unstable. Any suggestions regarding the ongoing work issues and potential accommodations - in this case a phased return to work - were to be considered once the Complainant had been certified medically fit for work. I find as a fact that up to and including the time of the Complainant’s resignation on the 1st of August 2024, there were no medical recommendations from any source which specifically suggested or advised that the Respondent engage with or communicate with the Complainant so as to expedite or facilitate her recovery. The only recommendations made were to be considered once the Complainant had “been certified medically fit for work”.  

I note that the Labour Court encountered a similar situation in the case of Magna International Autolaunch Ireland Limited v. Curran EDA2348 and held as follows:

“Section 16 of the Act places an obligation on employers to provide appropriate measures to assist an employee with a disability to undertake their role.  In this case it is accepted that the Complainant was on certified sick leave for the duration of the period encompassed by the claim. The Court finds that in circumstances where the Complainant was not certified fit to work, and no reasonable accommodation was sought by him to assist him with his return to work, the claim that he was denied reasonable accommodation has not been made out.” 

I also note the similar approach taken by the Adjudicator in the related cases of Duignan v. Lough Rynn Castle Limited ADJ-00031919, ADJ-00037903 and ADJ-00039597.

Applying the foregoing to the facts of the present case, I now turn to the argument made by and on behalf of the Complainant regarding the cycle in which she found herself. This was expressed in the resignation letter as follows: “Through your solicitors you have made it clear that you will not address any of the issues until I am certified fit to work, but as a matter of reality, I will never be fit to return to work so long as these issues remain outstanding which is a quintessential Catch 22 situation.” Similar arguments were made by the Complainant’s solicitor in correspondence and in the Complainant’s submissions. However, there was no medical evidence to support these submissions, and thus the Respondent cannot be accused of ignoring medical advice in relation to this issue. In her evidence the Complainant accepted that neither she nor her solicitor on her behalf, had sought any specific accommodations as she felt that it was up to the Respondent to approach her.

I find that in the absence of any medical advice from any source, the submission that the Complainant could not regain her fitness until her workplace issues had been resolved must be considered in the circumstances of this case, as an issue which concerns a grievance as distinct from an issue of reasonable accommodation. For this reason, it is excluded from consideration as a basis for alleging a failure to provide reasonable accommodation and instead it will be considered below as part of a consideration of the Complainant’s case for constructive dismissal.

There is one further matter relating to reasonable accommodation which must be considered and that is the question of whether the Respondent, by act or omission, hampered or impeded the Complainant’s recovery from her illness. It is conceivable that such conduct, if proven to have occurred, could constitute a failure to provide reasonable accommodation, particularly where any such conduct went against or frustrated the implementation of available medical advice. In this regard the Complainant pointed to the alleged withdrawal by the Respondent of its contribution to the Complainant’s health insurance cover.

In the Medmark Report of March 2024 the doctor stated:

“I have discussed employee assisted [sic.] programme (EAP) with her and I would be grateful if you could link in with her in regards its access”

In the subsequent report of the 15th of June 2024, the following recommendation appears:

“I understand from your recent communication an EAP service is available. Please provide details of this service to [The Complainant] as I believe this may assist in her recovery.”

Clause 3.13 of the Complainant’s contract of employment refers to the existence of a company healthcare policy and states: “Company contributions towards the cost are at the discretion of management.” It is common case that the Complainant was included on this healthcare policy such that the Respondent contributed to the premium and the Complainant discharged the balance.

It is also common case that an instruction was issued by the Respondent to the healthcare insurer to remove the Complainant from the policy. This instruction probably issued in April 2024. The evidence of Mr. Jina was that after the renewal date in March 2024, two staff members were instructed to carry out a review of the healthcare insurance policy to check whether there were authorisations on file for each employee in respect of whom contributions were being made by the Respondent. Mr. Jina said that the Complainant had never expressly asked the Respondent to subsidise her premium.  As no authorisation had been found for the Complainant, the insurer was instructed to remove her from the policy. Mr. Jina said that this instruction was issued by one of the employees conducting the audit. That employee did not check with him before issuing the instruction nor was that employee aware that the Complainant was “in conflict” with the Respondent. The removal of the Complainant took effect from the 8th of May 2024

The Respondent’s solicitors in a letter dated the 7th of June 2024 advised the Complainant’s solicitors that “Your client has access to an employee assistance programme via Laya Healthcare”. On the 20th of June 2024, in an email to the Respondent’s solicitors, the Complainant’s solicitor wrote: “..it appears that your client cancelled her membership for some strange reason”. In evidence Mr. Jina said that the Respondent’s contribution for the Complainant was reinstated with effect from the 10th of June 2024 and that it was therefore back in place before the Complainant’s solicitor’s email of the 20th of June 2024. In a letter to the Complainant’s solicitors dated the 28th of June 2024 the Respondent’s solicitors said, “in relation to your client’s access to Laya Healthcare, our client is satisfied that any removal has now been rectified”.

The Complainant’s resignation letter of the 1st of August 2024 included the following statement:

“Most recently, you have suggested that I should engage with your employee assistance programme through Laya Healthcare and yet you clearly took a decision to cancel my membership and then when it was brought to your solicitor’s attention, you claimed that it was an administrative error”

And further down in the letter the Complainant confirms as follows:

“14/05/24 - I notified Laya that I could not afford the policy and I cancelled it with immediate effect.”

In her evidence at the hearing, the Complainant stated that she herself used to work on the company policy and she doubted if her exclusion was an oversight or that the person who issued the instruction for her removal was authorised to take that step without Mr. Jina’s knowledge and approval. However, the Complainant did accept that the Respondent’s contribution for the Complainant was reinstated on or about the 10th of June 2024. The Complainant also accepted that it was her own decision not to continue with the cover, which she said she made for financial reasons as she could no longer afford to make her own contribution to the premium. The Complainant also accepted that she did not have a contractual entitlement to a contribution from the Respondent to the premium. 

The Complainant’s resignation letter and her evidence suggests that the Respondent deliberately set about removing her from the cover offered by the policy which included access to the Employee Assistance Programme (“EAP”). However, she did accept that the instruction issued by the Respondent to cease the Respondent’s contributions towards her premium was reversed and that it was she who made the ultimate decision to discontinue the cover. She did not allege or offer any proof that she was prevented from accessing the EAP arising from her removal from the policy from the 8th of May to the 10th of June 2024.

I find that the issue of the withdrawal of the Respondent’s contribution does not establish a failure to provide reasonable accommodation. Insofar as the issue is relevant to any grievance forming the basis of a constructive dismissal claim, that issue is dealt with separately under that heading below.

Finally insofar as it was suggested or implied that the Complainant’s decision arose from impecuniosity which she attributed to the failure by the Respondent to pay sick pay during her absence, it was accepted by the Complainant that she had no contractual entitlement to sick pay and thus the Respondent was not in breach of the Complainant’s contract of employment by failing to maintain sick pay beyond the initial discretionary payment. Thus although it may be conceivable that a breach of contract leading to a loss of remuneration could put an employee under financial pressure and thereby deprive her of the funds to maintain insurance cover to access medical treatment necessary for her recovery, such a case cannot be made by the Complainant in the present case as there was no breach of contract in relation to sick pay entitlements.

Conclusions on the Reasonable Accommodation Claim

In all of the circumstances, I find that the Respondent was not in breach of its duty to provide reasonable accommodation nor was the Respondent guilty of discrimination on the disability ground on any other basis. It follows that any claim based on failure to provide reasonable accommodation or discrimination on the disability ground must fail.

The Constructive Dismissal Claim

Relevant Facts

The Complainant initiated a formal grievance by way of an email sent to Mr. Twohig dated the 30th of March 2022 stating:

“…I am making a formal complaint about the communications I received from {Mr. Jina] in the last few weeks”

No further detail was provided at that time. At the same time as initiating the formal grievance the Complainant was also certified as unfit for work, and she remained so certified from then on. The Respondent retained a firm providing professional workplace investigation services. Terms of reference were drawn up to which the Complainant agreed, and the investigation proceeded. The Complainant fully participated in the investigation process despite being medically certified as unfit for work.

As to the substance of the grievance the Complainant provided a written statement to the Investigator which included the following:

“[Mr. Jina] “was/is making me feel incompetent, humiliating me as all emails are being sent unnecessarily to other senior managers i.e. COO and CFO and he has me totally stressed out. [Mr. Twohig] advised that he would speak to [Mr. Jina] directly if I wanted him to or that I could go down a formal route. I didn’t want to go to [Mr. Jina] directly as I was very upset and stressed about the situation that had materialised.

On the morning of Monday 29tth  March, I spoke to my manager [Mr. Twohig] and I suggested that he look at my job role and responsibilities as additional work was being given to me such as the Air Con installation and recruitment which is not part of my job. I advised that I was willing to work through whatever issues were arising, but I did not want any more ‘nit picking’ about trivial things…”

Mr. Jina participated in the investigation process and in so doing provided a statement to the Investigator outlining a number of criticisms of the Complainant’s work. The Investigator declined to make findings on these allegations as they were not captured by the agreed terms of reference. The Complainant nonetheless took exception to these “counter-allegations”, as to their content and the way they were expressed.

On the 14th of July 2022 the Respondent referred the Complainant to Medmark, who issued a report that day in which the doctor stated: “In my opinion, this employee remains unfit to work”

The investigation report issued on the 22nd of July 2022. The Complainant’s grievance was not upheld.

The Respondent was reviewed by the same doctor in Medmark, who issued a report dated the 23rd of August 2022 stating that the Complainant remained unfit to work. The doctor went on to say: “It is however my view that she remains unfit to engage with the employer to discuss possible resolutions of her work-related concerns.”

By email dated 30 August 2022 the Complainant wrote to Mr Twohig complaining about the findings of the independent report. She queried whether there was anything else that could be done or whether that was “the end of the grievance process?”

By email dated 2 September 2022 Mr Eoin Twohig responded outlining that the company was “satisfied the investigation was thorough, robust and independent.”. The Medmark report dated the 23rd of August 2022 was enclosed and it was noted that Medmark expressed the opinion that the Complainant remained unfit to engage with the employer. It was indicated that the Respondent would need a certificate from the Complainant’s doctor stating that she was fit to engage and also a positive fitness to return to work report from the ‘Company doctor’ [meaning Medmark]. The letter went on to say that once the Complainant had been medically cleared to engage with the company and was due to return to work, the company would make arrangements to address her concerns whilst also working with her to support her in-addressing any performance related issues. It was further stated that “In doing so, we may seek the assistance of Insight HR or a separate outsourced HR provider. In the meantime, if there is any additional support that the Company can provide to you please make contact with me to discuss. “

On the 31st of March 2023 the Complainant initiated a claim to the WRC alleging discrimination on the disability ground and failure to provide reasonable accommodation.

On the 1st of May 2023 the Complainant’s solicitors wrote to the Respondent’s solicitors. The letter concluded as follows:

“As an employee of [the Respondent], our client has the right and expectation to work in a safe environment, free from bullying and harassment. For the vast majority of her time in [the Respondent] it was a lovely place to work. Unfortunately, for some reason, this changed in the last 18 months and she was subjected to entirely unreasonable and unacceptable behaviour with the result that she has felt constantly under the microscope and harassed by senior management. Having considered all of the above our client is extending a final invitation to mediate these issues and is leaving that invitation open until 2pm next Tuesday 6th June. Should we fail to hear from you by then, she will be left with no option but to consider herself constructively unfairly dismissed and will be lodging a separate claim with the WRC, a copy of which you will receive in due course.”

A mediation took place in July 2023 which did not generate a resolution to the dispute as it then stood.  

On the 28th of November 2023the Complainant withdrew the WRC Complaint initiated on the 31st of March 2023.

Correspondence ensued between the parties’ solicitors (discussed above) which primarily related to the issue of reasonable accommodation. There was no specific threat or demand prior to the resignation letter.

The Case Made for Constructive Dismissal

The Complainant said in her evidence that her resignation letter dated the 1st of August 2024 set out the reasons for her resignation. The text of this letter is fully set out above.  In summary format the following issues were identified:

The fact that the Complainant was caught in a cycle described by her as a ‘Catch 22 Situation’ whereby she would not recover her fitness whilst the issues with her employment remained outstanding, yet the Respondent would not engage with her until she recovered her fitness. 

When the Complainant engaged in the internal grievance process, issues regarding her performance and issues regarding her husband’s business were raised which had not been raised prior to her sick leave and the Complainant was informed that these issues would be addressed as soon as she returned to work

The Complainant did everything that was asked of her including taking in extra duties and additional hours. She forewent pay increases and made a huge contribution towards dealing with an increasingly large workforce while adapting her role and skill set to accommodate the many changes following the extension of the business. The Respondent did not return the courtesy and did not honour the Complainant’s contract or observe the most basic levels of professional courtesy and respect

Annual and performance related salary increase which were previously applied to the Complainant’s remuneration without fail stopped when she raised her grievance and were never restored.

The Complainant no longer had any trust or confidence in the company

In addition to the resignation letter written submissions delivered on behalf of the Complainant were framed as follows:

The counter-allegations made by the Respondent in the course of the investigation were very serious. There was a lack of clarity as to what would occur on the Complainant’s return to work and the manner in which the allegations were left hanging over the Complainant made it intolerable for her to return in the absence of any further explanation. The cumulative effect of the incidents complained of, the way the complaints were handled adversely affected the Complainant’s mental health.

The Investigation terms of reference were too narrow and should not have been restricted to the dignity at work policy but were capable also of capturing terms of employment such as workload, the extent of her roles and responsibilities and her and hours of work.

The Respondent failed to engage following the Medmark Report 28th of March 2024. The Respondent should have clarified the reporting lines prior to the Complainant’s return to work.

The Respondent acted in such an unreasonable manner as to leave the Complainant with no reasonable option other than to resign.

Evidence

The Complainant raised the issue of outstanding grievances regarding the Complainant’s workload and reporting lines which were not addressed in the Investigation. Her counsel submitted and put to the witness taking responsibility for the process, Ms. Rebecca Bowman, that these issues could have been addressed by the investigation process. However, the Complainant accepted the terms of reference before the investigation began and as regards the principal thrust of her complaint, the Complainant summarised it herself in her submission to the investigation “I was willing to work through whatever issues were arising, but I did not want any more ‘nit picking’ about trivial things…”. This statement suggests that any contractual issues were capable of being addressed in the normal course of work but that the issues with Mr. Jina’s communications and micro-management formed the core issue which the Complainant felt unable to deal with in the normal course and which required investigation.

When the investigation concluded, the Complainant protested at the outcome and the way in which the counter-allegations were raised and remained effectively hanging over her, but she did not call upon the Respondent to address her job description reporting lines or workload. At that stage the Respondent did offer the Complainant an important option when, in his email of the 2nd of September 2022, Mr Eoin Twohig mentioned the possibility of re-engaging the firm that had carried out the investigation or a separate outsourced HR provider once the Complainant had been medically cleared to engage with the company. It is significant that when the Complainant eventually was certified – not to return to work but to communicate with the Respondent – neither she nor her solicitors sought to initiate any engagement with the Respondent up to and including the date of her resignation. Instead, the principal thrust of the Complainant’s case was that she was caught in a vicious circle where she could not return to work unless the Respondent addressed her concerns (the ‘Catch 22 situation’) and the onus was completely on the Respondent to do so. As the Complainant put it in her resignation letter “Having given the matter serious consideration, I have lost all trust and confidence in the company and its ability to resolve the impasse”. This raises the essential questions as to whether the onus lay completely on the Respondent to resolve the impasse and if so whether the Respondent’s failure to do so left the Complainant with no choice but to resign.

The Complainant said that she did speak to Mr. Twohig about the issue of her hours of work and workload but she accepted that the issue did not form part of her formal grievance. She confirmed that her main issue was ‘nit picking’ in relation to her work by Mr. Jina and the fact that he was copying his emails to her - to other senior managers in the Respondent. The Complainant confirmed that she agreed to the terms of reference which were drawn up by the Investigator.

As regards the additional allegations made in the course of the investigation, the Complainant accepted that these could not have been put to her before then, as they had only come to light after her sick leave commenced. She agreed that, in her absence, her work had to be covered. She accepted that the issues which had been identified by Mr. Jina would have to have been addressed on her return to work. With regard to Mr. Twohig’s email to the Complainant of the 2nd of September 2022, it was put to the Complainant that she had been offered support on her return to work including, if necessary, assistance from an outsourced HR service provider. The Complainant said that it was her expectation that she would receive contact directly from Mr. Twohig but she accepted that she had emailed the investigator on the 10th of May 2022 to request that she would not be contacted by the company while she was on sick leave. She also accepted that neither she nor her solicitor had specifically requested contact from Mr. Twohig. Further she accepted that when she herself emailed Mr. Twohig on three occasions in April 2024 and two in May 2024, she did not invite a discussion. The Complainant said that she was planning to have a discussion with Mr. Twohig on her return. She was disappointed that nobody from the Company made contact with her. She was seeking reassurance from the Company that the issues which she raised in her grievance would not happen again and even though the investigator had found that the communications to which she objected were not inappropriate she said that she did not agree with those findings and she expressed the opinion that someone in the company could have and should have spoken to her. The Complainant accepted that she did not raise any further grievance before she resigned.

As regards the Complainant’s roles and responsibilities Mr. Jina could not comment on whether these were issues discussed verbally between the Complainant and Mr. Twohig. He agreed that the Complainant’s role did expand as the business expanded but he said that the expanded duties were already in place for a year before the Complainant initiated her formal grievance

It was put Mr. Jina that his counter-allegations were heavy handed and demonstrated that he had already made conclusions on the issues raised and that the Complainant could not be expected to return to work in such circumstances. Mr. Jina insisted that the allegations were factually based and that he stood over them. There were to be investigated on the Complainant’s return. He agreed that they were not directly relevant to the Complainant’s complaint, but they did relate to how she had performed her duties. He denied that he was lashing out against the Complainant and attacking her as a form of defence. The submission to the investigation was not written exclusively by him but was a collective response on behalf of the whole management team.  

As to why the Respondent did not approach the Complainant prior to her resignation Mr. Jina said that the Respondent did not contact the Complainant as she was on sick leave. When the Complainant herself emailed in April and May 2024, she had queries relating to social welfare arising from which the Respondent contacted the Department of Social Protection who advised the Respondent not to correspond further with the Complainant and that the Department would take the matter up directly with the Complainant. Furthermore, the witness was aware that the solicitors for the respective parties were in active communication with each other, but he denied that the Respondent did not want to engage with the Complainant and just left the issue up to its solicitors. He said that the Respondent’s solicitors had been seeking details of the Complainant’s disability and what accommodations she was seeking since 2022. On redirect examination Mr. Jina said that such details were still being sought by the Respondent’s solicitors in a letter to the Complainant’s solicitors of the 7th of June 2024. He agreed that clarification was not provided regarding the issues which were to be investigated on the Complainant’s return, but he said that the Complainant resigned and never came back.

Analysis of Submissions and Evidence

As regards any role played by the alleged failure to provide reasonable accommodation, I have already found that there was no such failure, and it follows that the Respondent was not guilty of unreasonable behaviour or fundamental or repudiatory breach of contract under this heading such as to ground a claim for constructive dismissal.

It was also alleged that the counter-allegations made by the Respondent in the course of the investigation into the Complainant’s grievance were irrelevant to the issues arising and were retaliatory and inappropriately aggressive. It was contended that the making of the allegations and the way they were framed adversely affected the Complainant’s health. Two separate issues are raised in this regard: firstly, that the making of the allegations was unfair and oppressive and secondly, that the Complainant’s health was thereby adversely affected. As to the first issue, I heard evidence from the parties and examined the documentation relevant to the issues canvassed. The investigator ruled those issues out as being irrelevant to the complainant under investigation and made no findings on them. However, as the issues were raised in the present case, I did hear and consider evidence regarding the factual basis of the allegations made and the Complainant’s response to those allegations. Without making any findings as to whether the allegations were well-founded or not as a matter of fact, I do find that there was a factual basis for the issues raised and they were not contrived or exaggerated. I further find that the allegations were made in an effort to illustrate the context of and the factual background behind the impugned communications made by Mr. Jina and for this reason I do not think that raising them was entirely unreasonable. As regards the issue of whether and to what extent the counter-allegations (the making of them or the way they were framed) adversely affected the Complainant’s health, this is an issue which is more appropriately dealt with in a civil claim for personal injuries rather than a claim for constructive dismissal. Moreover, In the present case, civil proceedings have issued and are extant.  I must decline to make any finding on this issue beyond the essential finding that, in all of the circumstances I do not deem the making of the counter-allegations or the way in which they were framed to constitute unreasonable behaviour or fundamental breach of contract such as to ground a claim for constructive dismissal.

The situation as between the parties does appear to have reached an impasse but the question is whether that situation was the fault of the Respondent to such an extent as to constitute unreasonable behaviour and/or a fundamental breach of contract. As regards the “Catch 22” situation, the Complainant blames the Respondent and more particularly, Mr. Twohig, for failing to contact her and the principal criticism levelled at the Respondent is the failure to engage with the Complainant.

In her evidence the Complainant said that if such contact had been made, she would have sought assurances that the issues, which were the subject matter of her formal grievance, would not recur. However, the findings of the investigation did not uphold the complaint in relation to those issues and thus it is difficult to see what reassurances could have been offered, at least as regards those issues. As regards the investigation findings the Complainant went no further than to say that she did not agree with them and that was the extent of the challenge to those findings. The Complainant’s counsel contended that the investigation was too narrow in its focus in that it could and should have encompassed wider contractual and workplace issues concerning reporting structures and increased workload. Nonetheless it is the case that the Complainant agreed to the terms of reference for the investigation before it began and there is insufficient evidence that these issues were advanced by her during the investigation or following its conclusion.

After the investigation concluded, Mr. Twohig emailed the Complainant on the 2nd of September 2022 and that email specifically flagged that the Respondent was open to retaining the firm that had carried out the investigation or a separate outsourced HR provider. Although there was no specific detail on what such a third party might be asked to do, the offer at least suggests that the Respondent was prepared to engage further with the Complainant. For her part the Complainant did not take up this offer or even seek clarification on what was being suggested. Insofar as the proposal was predicated on the Complainant being certified fit both to engage and to return to work, it appears that the Complainant was unfit to do either, as of September 2022.

In the Complainant’s submissions it was contended that “The Company did not ask Medmark the right questions in the period when the claimant went out sick on 1/4/22 until March 2024. The Company should have asked was the claimant fit to work and, if not, was the claimant otherwise fit to engage with the Company.” It was noted that although the Respondent was able to produce documentation regarding the briefing given to Medmark before the third and fourth Medmark reports, no such documentation was available regarding what the Respondent asked Medmark in commissioning the first and second reports. It was submitted that The Company should have asked was the claimant fit to work and, if not, was the claimant otherwise fit to engage with the Company.

The first Medmark report of 14th of July 2022 does not address the issue of fitness to engage at all. At that time the Complainant had actually been engaging, although this engagement was with the external investigator as distinct from the Respondent directly. The investigation report was issued on the 22nd of July 2022, just over a week after the first Medmark report.  A month later, on the 23rd of August 2022, the second Medmark report said of the Complainant that “she remains unfit to engage with the employer to discuss possible resolutions of her work-related concerns”. However, the Complainant was not aware of this medical opinion until after she emailed Mr. Twohig on the 30 August 2022 - when he sent her the report with his reply of the 2nd of September 2022.

Whilst there is no written record as to what questions were asked of Medmark prior to the first and second reports it is also the case that the Complainant did not challenge the findings actually made in those reports and in particular the opinion expressed in the second report that she was unfit to engage.

Although the Complainant was deemed unfit to engage by Medmark at the date of Mr. Twohig’s email in September 2022, by January 2024 this situation had changed when the Complainant’s doctor advised her solicitors that she was “fit to communicate with her employer”. This advice was forwarded to the Respondent on the 21st of February 2024, and the Respondent organised a review with Medmark for the 24th of March 2024. However, before this review took place the Complainant issued personal injury proceedings on the 15th of March 2024. After this date the report from Medmark (the third report, dated 28th of March 2024) was forwarded by the Respondent’s solicitors to the Complainant’s solicitors on the 22nd of May 2024. The fourth and last Medmark report (which described the Complainant – though still unfit for work – as “medically fit to engage in any meetings”)was forwarded on the 28TH of June 2024.

Thus, from January 2024 all the way through to her resignation date, the Complainant was aware that, although she was still (and remained) unfit to work, she was fit to communicate with her employer (January 2024) and became aware that Medmark deemed her fit to engage from May 2024, yet she did not do so. For this reason, it is impossible to say whether the Respondent would have refused to engage at that stage until the Complainant was fully fit for work (as per Mr. Twohig’s email of the 2nd of September 2022) but the Respondent was not asked to do so by the Complainant or her solicitors. The reality of the situation is that a stalemate had arisen throughout 2024. The Complainant contended that the Respondent should have contacted her and its failure to do so was unreasonable. This general allegation must be placed in the context of a claim for constructive dismissal where it is alleged that the Complainant, when confronted with such unreasonable behaviour, had no choice but to resign. 

Both parties in their submissions - set out above - have correctly identified the legal provisions applicable to a claim for constructive dismissal. It is common case and well-settled law that a constructive dismissal claim will generally fail where internal procedures have not been exhausted. In the present case, although the Complainant initiated and pursued to conclusion, a formal grievance, it is also clear that she had further grievances which she needed the Respondent to address before she could return to work, and that her decision to resign was based principally on the Respondent’s failure to address those issues satisfactorily. In this case it may not have been incumbent on the Complainant to initiate a further formal grievance, but I find that at very least it was she who should have initiated some form of engagement whereby those grievances were listed clearly coupled with an ultimatum to the Respondent to propose a process whereby they were to be addressed. This might have included the retention of a third-party HR Consultant (as was flagged in September 2022) or some other agreed process. That process, if it had been undertaken in whatever form would probably have involved the clarification of the outstanding issues and, if appropriate, further medical evidence from the Complainant’s doctor. It could also have captured all of the other issues, such as the temporary removal of the Complainant from the health insurance policy, her exclusion from a WhatsApp group and pay issues which were canvassed prior to, and (to an extent) in the resignation letter.

In circumstances where the parties were engaging through solicitors it was not unreasonable for the Respondent itself to have been reluctant to approach the Complainant directly. Given that she was on sick leave, such an approach could well have been deemed inappropriate or oppressive and moreover, during the investigation, the Complainant (as recorded in an email from the investigator to the Respondent of the 10th of May 2022) had requested that she not be contacted by the Respondent while she was on sick leave. Such contact between the parties as did taken place (in April and May of 2024) was initiated by the Complainant and I find that the Respondent dealt with the specific queries raised by the Complainant appropriately. Furthermore, given that the queries were specific and did not relate to the more general issue of seeking reassurances and addressing outstanding grievances, there was no obligation on the Respondent to use the opportunity of contact initiated by the Complainant to make proposals of a more specific nature and again, had the Respondent done so it may have exposed itself to criticism. 

In her evidence the Complainant accepted that she did not raise any further grievance before she resigned. The resignation cannot fairly or reasonably be described as resulting from a ‘heat-of-the moment’ reaction to any particular development. The Complainant was legally represented when the letter was delivered, and her solicitors had issued a personal injury claim to P.I.A.B. and a previous claim to the WRC in March 2023 (later withdrawn) as well as engaging in detailed correspondence with the Respondent and its solicitors for a considerable period prior to August 2024. No threat or demand was made prior to the resignation nor in the resignation letter itself. Instead, the letter is couched in terms which made it clear that the Complainant had made up her mind.  The phrase breach of trust and confidence is used twice, as is the phrase that the complainant regarded herself as having been constructively dismissed. Moreover, the resignation letter itself was neither preceded by a demand - coupled with an ultimatum or threat to resign - nor did it specifically seek any action on the part of the Respondent which might have led to the reversal or suspension of the resignation. In such circumstances I find that there was no obligation on the Respondent to invite the Complainant to reconsider her resignation as the Complainant’s decision, made at a time when she was legally represented, was fully informed and final.

Conclusions on the Constructive Dismissal Claim

The Complainant bears the burden of proving on the balance of probability that, due to a fundamental or repudiatory breach of contract and/or unreasonable behaviour on the part of the Respondent, she had no choice but to resign.

Although the Complainant held the view when she resigned that she had outstanding issues with regard to her employment, I find that none of those issues taken together or separately constituted a fundamental or repudiatory breach of contract on the part of the Respondent such that the Complainant was justified in deeming herself constructively dismissed as at the date of her resignation.

Insofar as the Complainant resigned in the face of allegedly unreasonable behaviour, there is insufficient evidence to establish that any such behaviour was of sufficient gravity as to leave the Complainant with no choice but to resign. She had further choices. Prior to resigning there was no impediment to the Complainant (either directly or through her solicitors), calling upon the Respondent to engage with her and/or setting out all of the grievances which she perceived as preventing her return to work and/or issuing an ultimatum to the Respondent backed by a threat to resign. Even if the Complainant did not do any of the foregoing before she sent her resignation letter, that letter itself could have been written in terms which left open the possibility of further engagement rather than informing the Respondent of the conclusions which she had already made.

In all of the circumstances I find that the Complainant has not established that she was left with no choice but to resign and she has not discharged the burden of proof necessary to establish that she was constructively dismissed.

Accordingly, I find that the Complainant was not unfairly dismissed.

CA-00063527-001 The Respondent did not discriminate against the Complainant

CA00066291-0001 The Complainant was not unfairly dismissed

CA-00063527-002, CA-00063527-003, CA00066291-002 and CA00066291-003 – Claims withdrawn

Employment Equality Act 1998 – Section 16 – Disability Discrimination - Reasonable Accommodation – Disability -  A Worker (Mr O) v An Employer (No.2)EED0410; Reported at[2005] ELR 132 - Kennedy v. Stresslite Tanks Limited Dec-E2009-078 -  Ms X v. A Nursing Home DEC-E2010-090 -  A Government Department v. A Government Worker [Note Correct Citation is: EDA061-  Mr A v. A Government Department [2008] E L R 354 - Mr O v. Industrial Waste Management Company[2014] 25 ELR 106 - Magna International Autolaunch Ireland Limited v. Curran EDA2348 - Duignan v. Lough Rynn Castle Limited ADJ-00031919, ADJ-00037903 and ADJ-00039597 – Unfit for work - Constructive Dismissal – Fitness to Engage