Complainant

Respondent

Parties

Ignatius  Corr

Vertiv Ireland, E&I Engineering

Representatives

Self-represented

 IBEC

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-00069336-001

17/02/2025

The complainant submits that he was discriminated against on the grounds of disability contrary to the provisions of the Employment Equality Acts, 1998-2015.

The last act of discrimination occurred on 17/2/2024 when the respondent phoned him to accept his resignation.

He had worked as a Team Lead Support in the respondent’s company from 12/4/2010 until his resignation on the 17/2/2024.

His gross weekly pay was €840.

He submitted his complaint to the WRC on 17/2/2025.

The complainant submits that he was discriminated against on the grounds of disability when the respondent failed to offer reasonable accommodation by choosing not to implement the recommendations of an Occupational Health Physician about a phased return to work, supported by counselling services, in January 2024.

Evidence of the complainant given under affirmation.

The complainant worked as a team lead with the respondent engineering company from 12/4 /2010 until 17/2/2025.

The complainant had a good record with the respondent.

His job was to ensure that his team had all the necessary equipment and support to do their jobs.

He developed a heart condition which in July 2021 necessitated his absence from work for surgery, medical treatment and care. He had subsequent relapses of this heart condition   He developed anxiety because of this illness and also because of early deaths in his family from heart disease.  He went out on continuous sick leave in September 2023.

A recommendation for reasonable accommodation.

On 9 January 2024, the company doctor recommended to him and to the company that he be provided with counselling to dispel the anxiety triggered by his medical condition.  The report recommended a phased return to work over 3 months supported by counselling. This report was ignored. The complainant was willing and able to return to work in January 2024 pending the implementation of the Occupational Health physician’s recommendations.

He stated that he did not write to the company asking them to implement the recommendations. He now believes that the report was sent to a previous HR manager who had left the company in April 2024. Her replacement joined the company in Sept 2024.

He was waiting for the company to contact him. Their failure to act on the Doctor’s recommendations prevented his return to work.

He informed the HR manager of the report in December 2024. She seemed unaware of it. She said she would investigate. She never returned to him on the matter. She did not act on it.

His mental health issues had been escalating from September 2023 and throughout 2024.

The complainant identified a comparator who was treated more favourably. That employee also absent form work due to stress and anxiety was offered counselling. He was five years younger than the complainant.

A request for a redundancy package.

 He made innumerable calls to the respondent HR department between November 2024- February 2025. They were all ignored. 

He phoned the HR officer on 17/2/2025 advising that he would be seeking legal advice. He handed his notice on 17/2/2025.

Cross examination of the Complainant.

The complainant confirmed that he was offered a cardiac rehabilitation programme in June 2024.He confirmed but that his medical certificates stated he was unfit to work from 12/12/2023 – February 2025 but stated that had the Occupational Health Physician’s recommendations been implemented, he could have returned to work.

To the question as to whether reasonable accommodation had been suggested, the witness advised that counselling had been suggested, and that physically he was fit.

To the point that he had never submitted a certificate with recommendations for adjustment, he stated that he was waiting for the Occupational Health Physician’s recommendations to be implemented. He understood that there had been a change of ownership but did not realise that HR and Management personnel familiar with his situation had left the company, but stated that the HR Officer, in attendance today, survived the change of ownership.

To the question that the company had no other information available to them other than that he was unfit to work, he stated again that they had the physician’s’ report

To the point that his text messages between November 2024 and February 2025 closed down the option of exploring accommodation, he replied that he had been waiting in vain for so long for the company to contact him that his mental health condition made him say that at the time.

He accepts that the role of team leader had not been made redundant.

The HR Officer stated that she would look into redundancy for him in November 2024 and didn’t.

He was unaware that the company had a mental health support programme for employees. He was provided with no information about it. In fact, he had several conversations with HR executive who never mentioned anything about this programme. The response to his queries throughout was very poor. He phoned the HR department on the 29/1/2025 looking for his P 45. He got no response until 17/2/2025.

He was eager to have a meeting with the company. He never heard from them. He believes that they did not want him back due to his health issues.

He asks that his complaint be upheld.

The respondent denies that they discriminated against the complainant on the grounds of disability contrary to the provisions of the Employment Equality Acts, 1998-2015.

The complainant voluntarily resigned on 17/2/2025 when he failed to secure a commitment from the respondent to provide him with a redundancy package. His role was not redundant.

Evidence of HR Officer given under affirmation.

She has occupied the role of HR Officer from March 2019 to date.

The first time she saw the report of the Occupational Health assessment was in July 2024, recommending counselling. Other management and HR personnel may have received it. Paradoxically, alongside that report were the medical certs stating that he was unfit to work.

The Occupational Health assessment had been initiated and organised by an employee who was no longer with the company.

There was no proper handover completed when HR personnel changed.

The witness received an email from the complainant on the 12/12/2024, stating that he could not see himself returning to work and enquiring about a redundancy package. She asked different management personnel about this proposal, but no definite response was provided. Her own workload at the time was onerous and she missed some emails.  She apologised for the delay in responding to the complainant’s emails. It was not the complainant’s issue. She had been trying to cope with the demands of the workplace. The HR staff had been depleted. The previous HR Manager had left in July 2024, and a HR executive had left in April 2024. Numbers now have been restored,

She confirmed that they do have a mental health programme for employees.

She telephoned the complainant on 17/2/2025 and confirmed that the company would not be offering a redundancy package on medical grounds. She explained his outstanding annual leave entitlements to him. They gave the complainant more than he was entitled to in error. They never tried to recoup the overpayment.

The lack of communication was down to the fact that her departing HR counterpart did not share details of the complainant’s situation with her on his departure.

The witness stated that she did not believe that she had anything to offer him in terms of mental health. She did not see his email of 20/1/2025.

The OH report was never placed in his file. She was not aware of any requirement for accommodation. The five emails form the complainant from November 2024 – February 2025 make no reference to reasonable accommodation. They were all concerned with a redundancy payment

Summary.

The respondent states that they acted fairly and proportionately. He was unfit from 18/12/2023 to February 2025.

The respondent accepts that at the material time there were only 2 employees in the HR department; now there are 9. The situation was far from ideal.

However, they did not discriminate against the complainant on grounds of disability

I am required to establish if the complainant was discriminated against on grounds of disability, in terms of section 6(2)(g) and contrary to Section 8 of the Acts when the respondent failed to implement the Occupational Health recommendation for 3 months of counselling, coupled with his many unanswered enquiries concerning a redundancy package culminating in him resigning on the 17/2/2025.

Dates of discriminatory acts.

A complaint of a failure to offer reasonable accommodation.

Section 16 (3)(b) of the Act is designed to provide reasonable accommodation to employees for the purposes of enabling access to employment.

Failure to offer the complainant reasonable accommodation occurred in January 2024 when the report recommending counselling for him as a means of treating his anxiety over his heart condition and enabling his return to work was ignored.

Discrimination on the grounds of disability

The complainant puts the last date of discrimination at 17/2/2025 when the respondent’s failure to respond to his many enquiries about requests for a redundancy package prompted him to resign.

But a complaint of constructive discriminatory dismissal was not pleaded.

Statutory Time Limits

Section 77 (5) (a) of the Act of 1998, as amended, states

“Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the F122[Director General of the Workplace Relations Commission] or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly”.

The complaint was lodged on 17/2/2025. The statutory period for submission of this complaint concerning a failure to provide reasonable accommodation ran from 18/8/2024 to 17/2/2025, or if section (b) is applicable, from 19/2/2024- 18/8/2024.

The complainant’s evidence is devoid of any enquiries having been made to the respondent concerning the implementation of these recommendations. His sole focus seemed to be on securing a redundancy payment.

The complainant did not lodge his complaint of a failure to provide him with reasonable accommodation within the statutory time frames. Section 77 (5) of the Act clearly puts the respondent’s failure to activate the recommendations of the Occupational Health physician instance of discrimination beyond the jurisdiction of the WRC.

The next question is whether the two separate acts of alleged discrimination, encompassing an act falling within the statutory time frame could be seen as part of a continuum of discrimination incorporating, as well, the act falling outside of the statutory time frame. In Hurley v County Cork VEC (EDA 1124), the Labour Court noted that Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation and held that:

 “Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

A failure to comply with the obligations contained in section 16(3) of the Acts can constitute an act of discrimination, in terms of conditions of employment, but a request for a redundancy package is the polar opposite to a request for reasonable accommodation for the purposes of easing oneself back into the workforce. These two acts of alleged discrimination cannot be seen as part of a continuum.

I do not have jurisdiction to hear this element of the complainant’s complaint.

A complaint of discrimination on the grounds of disability in failing to agree to the complainant’s request for a redundancy package on 17/2/2025.

Relevant Law.

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where

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

which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned.”

Section 6(2)(g) provides that discrimination on the grounds of disability will be taken to occur where

“That one is person with a disability and the other either is not or is a person with a different disability”

 Burden of proof.

The first obligation which the complainant must meet is compliance with section 85A of the Employment Equality Acts 1998-2015 which lays the onus of proof with the complainant to establish a prima face case of discriminatory treatment contrary to the Acts. Section 85A (1) of the Acts states that: 

“In any proceedings where facts are established by or on behalf of a complainant from which it may be presumed that discrimination has occurred in relation to him/her, it is for the respondent to prove the contrary”.

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201, the Labour Court concluded that

 “a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

The complainant must discharge this evidential burden. If he does, the respondent must prove that he was not discriminated against on grounds of his disability. If he does not, his case cannot succeed.

A preliminary step in establishing a prima facie case of discrimination on the grounds of disability requires the complainant to raise an inference of less favourable treatment based on section 6(2)(g) of the Acts. The essence of a complaint of discrimination is that employee A must show that he was treated less favourably than employee B, an employee without a disability or who has a different disability. The complainant misunderstands this requirement and named a comparator who did enjoy preferential treatment, (concerning the out of time complaint of a failure to provide reasonable accommodation), but he was an employee suffering from the same disability as the complainant.

Firstly, a redundancy payment is not an entitlement; its availability depends on certain factors- most principally that the job no longer existed, The complainant was unable to point to an employee with a different disability being provided with a redundancy package where no basis for a redundancy payment, as required by section 7 of the Redundancy Payments Act, 1969, existed.

I accept that the complainant was treated very shabbily both within and outside of the statutory time limits. While there was no evidence that his medical certificates stated stress or recommended reasonable accommodation, there was a recommendation for reasonable accommodation before the employer. It was ignored or got lost. It may have offered him a pathway back to work. Though the respondent had counselling packages for employees, none were offered to the complainant.

 I accept that the respondent ignored his many emails. But this disrespectful and shabby treatment is not the threshold required to raise a prima facie case of discrimination. That threshold is that the complainant must raise an inference that his treatment was less favourable than that meted out to a person without a disability or with a different disability.

I must find that the complainant has been unable to meet that threshold. The complainant has failed to raise an inference of discrimination on the grounds of disability in terms of section 6(2)(g) and contrary to Section 8 of the Employment Equality Acts, 1998-2015. His complaint cannot succeed.

I decide that the complainant has failed to raise an inference of discrimination on the grounds of disability in terms of section 6(2)(g) and contrary to Section 8 of the Employment Equality Acts, 1998-2015. His complaint cannot succeed.

Failure to raise an inference of discrimination on grounds of disability.