Complainant

Respondent

Anonymised Parties

A Candidate for Assistant Principal

A Government Department

Representatives

Allan Crann B.L. instructed by   Ormonde Solicitors

Stephen Brittan B.L. instructed by  the Chief State Solicitors Office

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-00064483-001

27/06/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and three witnesses for the respondent undertook to give their evidence under affirmation on the first hearing date.  A medical professional, appearing for the complainant undertook to give her evidence under affirmation on the second hearing day.  Cross examination was facilitated in relation to the witnesses.

At the completion of the hearing, I took the time to review all the oral evidence together with the written submissions made by the parties. The respective positions of the parties are noted, and a broad outline of the evidence and cross examination is provided.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”.

I have taken the decision to anonymise this decision having regard to the existence of a possible hidden disability on the part of the complainant.

The complainant submitted that he was discriminated against by his employer by reason of his disability when it victimised him and it failed to provide him with reasonable accommodation.

The complainant accepted that in order to establish discrimination it is necessary for him to prove that, but for the fact that he falls within one of the discriminatory grounds, he would have been treated differently.

The complainant submitted that in the case of O v An Unnamed Company (DEC-E2003-52), the Equality Officer held that work related stress could constitute a disability. He submitted that in the case of A v a Charitable Organisation (DEC-E2011-049) the Equality Officer held that work related stress, of itself, was not a disability within the meaning of Section 2 of the Act. However, the complainant noted that in this latter decision the Equality Officer noted that conditions linked to that stress can constitute a disability. The complainant submitted that he was under a disability impacting his mental health during the course of his employment with the respondent.

The complainant submitted that he was suffering from a disability affecting his mental health to such an extent that it impacted his ability to perform the role at the time of his employment with the respondent requiring him to take certified sick leave from that employment.

The complainant submitted that both himself and the CMO requested a reasonable accommodation for his disability that he be moved to a different division within the respondent so as not to work under his then line manager. This request was refused on the basis that the civil service probation guidelines document advises against transfer being agreed during a probation.

The complainant submitted that but for his disability he would have been able to complete his six month and nine-month reviews and it was hoped and expected confirm his appointment in the AP role.

The complainant submitted that the correct comparator is a hypothetical comparator being a person who did not suffer work related stress and was able to complete their probation on the basis of a 12-month period. He submitted that the discrimination was indirect and that his probation period was not paused for the duration of his sick leave, he was appraised after 12-month period on the basis of his three-month appraisal and that his requests for reasonable accommodation of his disability were refused.

The complainant is seeking compensation for the effects of the discrimination and following the ruling in Citibank v Ntoko EED045, he sought that any compensation awarded should be proportionate, effective, and dissuasive.

Witness evidence:

The first witness was a General Practitioner appearing for the complainant. She noted that she first saw him in September 2022. She stated that he had difficulties with anxiety and low mood. She stated that he did not want to start medication. She stated that she would never provide a diagnosis in writing to a patient in relation to anxiety and low mood. She stated that the complainant presented in October as quite unwell and displayed a loss of confidence and with suffering from a lack of sleep.

Under cross examination she confirmed that he was originally a patient of another doctor within the practise and also confirmed that all medical certificates related to stress related illness and simply marked the complainant as unfit for work.  She stated that the complainant's stress started when he got a promotion to a new job for which she had no specific notes.

Under redirection she confirmed this ‘anxiety and low mood’ was her diagnosis.

The complainant confirmed he was appointed to a promotional position in February 2023. He confirmed that there was a conflict with his line manager based on publications of private tweets which he was told were in breach of the code of practise. Disciplinary sanction was taken against him which he accepted. He closed down his Twitter account. He stated that a second disciplinary issue was raised in May 2023 after he reactivated his Twitter account. He stated that at that stage he felt completely persecuted. He noted that he then had a three-month probation appraisal, and he never felt more undermined. He noted that there was insufficient on-boarding and that he was asked to do a body of work that he was not qualified to do. He noted that the office was not fit for purpose.

He confirmed that the purpose of probation was to appraise the performance of a new hire and that he was told keep his head down and get on with it. In the weeks that followed he went on certified sick leave.  Ultimately, he saw the Chief Medical Officer (CMO) who made his suggestion that the complainant be moved to a different section to afford him a fresh start. The complainant noted that this process was impacting upon him massively and just after the review he felt that there was a witch hunt being conducted against him. He confirmed that the review of the case was undertaken by the CMO in September.

He noted that he had returned to work in August, but nobody talked to him for two weeks. He noted that he received an e-mail informing him that he had been relieved of half of his duties.

He stated that when he was on sick leave, he was informed that his probation had been paused. He stated that he had an online meeting with HR where he tried to explain that he had a major problem with his line manager in particular.

He stated that he had the CMO’s advice regarding his assignment elsewhere but also accepted that workforce assignments rest with the HR section. He noted that he was battling with a mental health issue that he never had before. He stated that the CMO’s letter of November restated the issue of a move but also noted that the decision to move him rested with both HR and management of the division. He stated that zero consideration was given to a move for him.

The complainant stated that he was planning to return to work in January or February 2024 and recollected that he did not think that he returned to work at all. He noted that there was no hope of a transfer going through and that ultimately, he was not confirmed in his role. He stated that he was reassigned back to his former AO role but in a different office. He stated that he did not want to go back as he was treated like he was a brand-new entrant in the civil service. He declined the offer to return to his former role and stated that he is currently trying to get a business off the ground.

Under cross examination the complainant was asked is there a requirement that civil servants remain neutral and he confirmed that they were so required. He confirmed that civil servants are not permitted to engage in political commentary but noted that he was not sure who deems opinion as political commentary. He accepted that he was prohibited from commenting on political matters but does not agree that his comments were political in nature, rather they were personal observations.

The complainant was asked about the letter pausing his probation and it was noted to him that it was paused on the basis of his return to work in the division. It was put to him that he wrote that he cannot contemplate returning to work in the division (in two letters, the first dated January, the second February 2024), He confirmed that in the second letter he wrote that he cannot return to the place of work which is the direct cause of his illness. He said he was advised that it would not be in the interests of his mental health.

He was asked to clarify what his disability was, and he noted that his mental health was completely compromised.  It was put to him that the occupational health physician noted that it was due to his interpersonal difficulties that he could not contemplate returning to work in the same division. The respondent’s representative put it to him that he was not suffering from a disability but simply from an interpersonal difficulty, to which the complainant disagreed.

It was put to the complainant that movement during probation is contrary to the civil service guidelines for a number of reasons but primarily in order that a probationary employee could be consistently assessed. It was put to him that to grant a request for transfer during probation would be akin to forum shopping and could not be contemplated. In response he stated that he was willing to do the job but not with the line manager in question.

It was put to the witness that he was offered a return to his former department but that he refused to take it up. He stated that it was not feasible to take the offer as he would be going back to his former department as a new entrant.

Under redirection it was put to him that he did return to the position for two weeks in August 2023, which he acknowledged.

The respondent accepted that workplace stress can amount to a disability but it does not believe that the complainant has made out adequately that he was suffering from a disability.

The respondent submitted that this case does not revolve around a situation where the complainant was not competent to undertake the work but rather, he was refusing to work for the assigned line manager.

The respondent submitted that the reasonable accommodation sought by the complainant does not come within the statute and that guidelines rule out a transfer during the probationary period.  The respondent submitted that the accommodations sought by the complainant were not reasonable.  The respondent referred to the case of A Clerical Officer v A Health Care Service Provider (ADJ-00043898), where the Adjudication Officer noted that the complainant, a clerical officer who suffered from visual impairment, asserted inter alia that the respondent ought to have transferred her to another clerical role in the wider organisation by way of reasonable accommodation. In rejecting this submission, the Adjudication Officer stated as follows:

“I am satisfied that the Respondent was not obliged to transfer the Complainant to complete her probation in a different department, which would amount to a change of its recruitment practices for the clerical officer entry grade applicant particularly where no evidence of a clerical officer vacancy in another department having been established.”

The respondent noted that likewise in this case the practices within the respondent organisation, namely the Guidelines, preclude the transfer of an employee during their probation.  The respondent further noted that quite apart from the content of the Guidelines, it is submitted that requiring the transfer of a probationer employee to a different division under a different line manager whenever the employee experiences conflict with management which they find stressful would facilitate forum shopping by probationer employees and entirely undermine the cohesion and efficacy of probation.

The respondent noted that the complainant has refused to accept the conditions under which the duties attached to his employment are required to be performed within the meaning of s. 16(1)(a) of the 1998 Act and therefore the issue of reasonable accommodation does not arise;

Section 16(1) (a) of the Act states as follows:

6.—(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,

Witness evidence:

The first witness for the respondent was the complainant’s line manager. She stated that he was on a 12-month probationary period but was only present in the office from 27 February to mid-June.  She discussed some of the projects to which he had been assigned and although she noted that he was perfectly capable of writing reports she noted that they were not done in the management board style. She noted that there were shortcomings in his performance.

She stated that the complainant did not conduct himself in an appropriate manner for a senior civil servant in terms of his social media usage, posting inappropriate matters on his social media. She noted that he was entitled to his views, but he was not entitled to engage in public discourse. She confirmed that she did not carry out a witch hunt or persecute the complainant but she was concerned that he was not showing himself in the best light during his three months in the office. She confirmed that they had a difficult relationship as his performance was not up to scratch and noted that she left a long-detailed e-mail for the complainant to deal with upon his return.

Under cross examination it was put to her that two disciplinary warnings would be distressing to anybody and that he was not given notice of the warnings.  She stated that she was not sure that he was given no notice of the warnings, noting that certainly he was given warning in advance of the second disciplinary meeting. When she was asked whether she told him that his appointment in the role of Assistant Principal was at risk she stated that she did tell this. It was put to her that there was no reference to the appointment being at risk in the second notice. The witness stated that he should have been warned that a second written warning would impact upon his probation. She noted that the point of a three-month assessment is to show that a candidate is able to improve and a six month assessment is to review and check in with an employee.

The witness confirmed that the complainant was texted a number of times seeking an update on his date of return.  She stated that she had no further involvement in any instructions to the complainant after August. She confirmed that she was not consulted on any move away from the section nor on any pause of probation. She confirmed that she had a conversation with the HR section regarding a phased return on the part of the complainant. She stated that they had no concerns about his return or how they would plan and manage that return.

Under redirection it was noted that the complainant was aware that he may not be appointed to the higher grade at the end of the probationary period.

The second witness for the respondent came from its HR section.  He noted that HR had become involved in November 2023. He noted that the complainant refused to return to work at the division because he would be required to work for his previous line manager and he had said that he would not countenance a return to the division. He confirmed that the Chief Medical Officer’s letter outlined that it was just advice regarding a move and that the decision was for the HR or management to decide whether it was appropriate to move the complaint out of the division. The witness confirmed that the decision to terminate the complainant’s probation was made on the basis that he had indicated that he couldn't countenance a return to the department and that it had to make a decision to revert the complainant to his former office.

Under cross examination he outlined the involvement of the HR division in terms of receiving the letters from the CMO. He noted that both letters had sought consideration for a move but noted that a transfer could not be agreed as it was country to the procedures. He stated that there was no medical view from the Chief Medical Officer rather he had made a suggestion, noting that it was within the remit of the HR section to decide on where to assign staff.

The witness confirmed that the complainant had not made any complaints regarding his line manager but that he indicated he could not work with her while providing no detail and making no complaint.

The witness confirmed that he sought urgent advice on the complainants return to work but that this was not sought at the behest of the line manager, the suggestion of which he entirely refuted. He said that due to confidentiality he would not be involved in a conversation like that. The only communication with the line manager was around the complainants return to work. The decision to terminate the complainant’s probation was made on the basis of the only evidence available, his initial three-month assessment, as not present for the remainder of the period and his refusal to countenance a return to the section.

The complainant submitted that he was discriminated against on the basis of having a disability.  He submitted that he was not provided with reasonable accommodation for that disability contrary to the provisions of the Act.  The respondent submitted that although his illness might amount to a disability, it did not believe that the complainant has made out adequately that he was suffering from a disability.  The respondent submitted that this case does not revolve around a situation where the complainant was not competent to undertake the work but rather, he was refusing to work for the assigned line manager.

The written submissions and oral evidence from both parties outline a work situation where the complainant had a number of disciplinary matters raised against him by his then line manager.  The complainant was serving out his probationary period following his appointment from Administrative Officer (AO) to Assistant Principal Officer (AP) in February 2023.  There was a 12-month probationary period in effect at the time of his promotion.  He served three months in his new division initially and then returned to work for a two-week period leave in August.  Following the raising of two disciplinary matters, these revolved around his alleged use of social media, the complainant went off on certified sick leave.  These disciplinary matters are not the subject of this complaint, they merely provide background information to this complaint.

The complainant submitted that he was not provided with reasonable accommodation when he sought to be transferred to another division, or at the very least to work for another line manager, to finish out his probationary period.

The respondent has raised a number of issues from whether the complainant was suffering from a disability, as outlined in the Act, to the fact that the complainant’s competence or capability to do the job was not called into question. It was also submitted that the accommodation sought by the complainant was not reasonable in all the circumstances surrounding this complaint.

The Act defines the meaning of disability as follows:

“disability” means—

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

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

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

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

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

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

The respondent accepted that perhaps a disability as outlined by the complainant at the hearing might amount to a disability under the legislation, but it did believe that the complainant has made out adequately that he was suffering from a disability during the time comprehended by the complaint.

The complainant outlined that he was suffering from work-related stress and his GP outlined that this coincided with the start of his promotion.  The Medical Certificates submitted from the complainant all referenced “stress related illness” as the reason for his absence.  The GP outlined that the complainant’s disability related to anxiety and low mood.  She stated that she would never provide a diagnosis in writing to a patient in relation to anxiety and low mood.

During his evidence, the complainant was asked to what his disability was and replied that his mental health was completely compromised.  It was put to him that the occupational health physician noted that it was due to his interpersonal difficulties that he could not contemplate returning to work in the same division. The respondent’s representative put it to him that he was not suffering from a disability but simply from an interpersonal difficulty, to which the complainant disagreed.

The complainant submitted that he did provide medical certificates to the respondent notifying them of his disability.  Copies of these certificates were provided to the Tribunal.  The medical certificates provided by the complainant state that he was unable to work due to ‘stress related illness’, they do not outline what that illness was.  At no point, until the hearing of these matters, did the complainant inform the respondent that he had a disability or what the nature of that disability was. None of these medical certificates provided to his employer during his employment, indicate a disability as defined under the Act, they merely indicate that that the complainant was not fit to work.  

Accordingly, I am not satisfied that the complainant has established that during his employment, he suffered from a disability as defined in the Act.

Having regard to the disability outlined by the complainant at the hearing of these matters, I am satisfied that in certain circumstances, it would comply with the definition of a disability for the purposes of the Act.  However, in order to benefit from the protections of the Act, an employee must notify an employer of the existence and nature of the disability.

The complainant has not established any facts regarding his submission that he was discriminated under the disability ground.  Therefore, I find that the complainant has not established that he suffered from a disability as defined in the Act.

Notwithstanding the foregoing, the Act outlines the obligations that fall upon an employer arising from the notification of the existence and nature of a disability.  One of those obligations requires the employer to consider an employee’s disability and, if he or she is unable to fulfil the duties associated with the employment, the employer is required to consider what accommodations they could make to the role, or to the tasks, such as to enable an employee to undertake their role and duties to a sufficient level.  This places the onus on an employer to ascertain the nature and scope of the disability, to consider the requirements of the job, and to make such accommodation as is ‘reasonable’ in all the circumstances.

However, Section 16(1) of the Act states as follows:

16.—(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.

The complainant indicated on more than one occasion that he was not willing to undertake the duties attached to the position that he had worked in, or that he would accept the conditions under which those duties were required to be performed under.

Section 16(3) and (4) of the Act state as follows:

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

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

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

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

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

(i) the financial and other costs entailed,

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

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

(4) In subsection (3)—

"appropriate measures", in relation to a person with a disability—

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

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

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

The respondent submitted that this matter was not one regarding the complainant’s competence or capability to undertake his duties, but that it revolved around his unwillingness to undertake the role.  Therefore, it argued that reasonable accommodation did not come into play in relation to this matter.

From the facts of this complaint, it appears that the complainant had difficulties in working to his line manager given that there were two disciplinary matters raised in a short space of time.  These related to his use of social media rather than to his competence or capability to undertake his role, I find that reasonable accommodation does not come into play in such circumstances.  It does not on the face of it, seem to revolve around his disability rather it revolves around his unwillingness to work with a named individual line manager. 

Under section 85A of the Act: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The complainant did not disclose the nature of his disability to the respondent, thereby hindering the employer’s ability to fulfil any obligations that might arise under Section 16 of the Act.  Accordingly, I find that he has not established facts from which it may be presumed that the respondent failed to provide him with reasonable accommodation.

Having regard to all the written and oral evidence presented in relation to this matter, I find that the complainant was not discriminated against.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not discriminated against.

Employment Equality – definition of disability – disability not established – reasonable accommodation – disability not disclosed – burden of proof – facts of discrimination not established – no discrimination found