Complainant

Respondent

Parties

Laura  Beresford

South Munster Money Advice & Budgeting Service CLG

Representatives

BDM Boylan Solicitors LLP

 J.W. O'Donovan 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-00069601-001

27/02/2025

The Complainants gave evidence on Oath. She was represented by her Solicitor, Mr Ciarán Cummins.

Ms Ursula Collins gave evidence on behalf of the Respondent who was represented by Ms Patricia Canty, Solicitor.

Legal submissions were supplied and relied upon by both parties at the hearing.

The Complainant gave evidence that she had fallen ill in or around April 2024 and had subsequently been diagnosed with Vestibular Migraine, a condition involving dizziness, headaches, nausea and fatigue, which significantly impacted her ability to function, particularly when over‑tired or working continuously without sufficient rest.

She stated that she was absent from work from the end of April 2024 until early July 2024 due to this condition.

Upon her return, she said she had informed her employer of her diagnosis and its effects. She relied on a GP letter dated 2 July 2024, which indicated she was fit to return to work but suggested that reduced hours would be beneficial in managing her condition.

On 11 July 2024, she formally requested a reduction in her working arrangements from five days (35 hours) to a four‑day week (28 hours), including one day working from home, explaining that this would help her manage fatigue and prevent symptom flare‑ups.

She gave evidence that the Respondent’s Occupational Health assessment on 22 July 2024, supported that a four‑day week with one remote day would benefit her, subject to operational feasibility.

The Complainant stated that her request was refused by letter dated 19 August 2024, on the basis that the Respondent’s funder Citizens Information Board (CIB), only permitted contracts of either 17.5 hours or 35 hours. She maintained that no proper assessment of her individual circumstances or operational feasibility had been carried out, and that the decision amounted to a blanket reliance on policy rather than an assessment of her needs.

She contended that from July 2024 onwards, in the absence of the requested accommodation, she had been required to continue working five days and had to use annual leave to take one day off per week to manage her symptoms. She stated this reduced to one day every two weeks once her leave ran low, and that this was not an appropriate use of annual leave.

She lodged a formal grievance in October 2024, supported by further medical evidence. She described the grievance process as stressful and stated that it resulted in a further refusal, again relying on the same policy, although a temporary four‑day week was offered conditional on backfilling her hours.

She said that no backfill was secured for a prolonged period, leaving her working full weeks and continuing to experience significant difficulty and stress.

The Complainant maintained that there was no meaningful engagement or individualised assessment of her needs, and that the Respondent failed to consider adjustments properly or explore alternatives.

It was her evidence that her condition amounted to a disability within the meaning of the Acts, and that the Respondent failed in its duty to provide reasonable accommodation.

She further stated that the handling of her request caused stress and anxiety in addition to the health impact of her condition, and that she sought a permanent reduction to a four‑day week (or equivalent accommodation) and compensation for loss of annual leave and distress caused.

The Complainant relied upon its legal submissions and the following case law in support of her complaint; HK Danmark, C 335/11 and C 337/11,Nano Nagle School v Daly [2019] IESC 63, A Health and Fitness Club v A Worker [EEA037] and Tracey v Smurfit Kappa Ireland (ADJ-00046740)

Regional Manager, Ursula Collins, gave evidence that the Complainant had been treated in line with standard procedures applicable to all staff returning from illness.

It was accepted that the Complainant had a medical condition and had sought reduced hours. However, the Respondent asserted that the medical documentation (GP and Occupational Health) did not identify the condition as a “disability”. It was further submitted that the recommendations referred only to what might be beneficial, not medically necessary or permanent.

Ms Collins stated that, in the absence of a medical opinion identifying a disability, the matter was managed as a standard return‑to‑work case, not under disability provisions of the Acts.

By way of background, it was submitted that the Respondent was fully funded by the Citizens Information Board (CIB), a statutory agency of the State, under a service level agreement.

All operational costs, including employee salaries, are provided by CIB. The Respondent are subject to strict financial and HR controls imposed by its funder CIB, including limitations on contract structures, recruitment protocols, and salary scales.

Ms Collins submitted that a funding rule imposed by the CIB, which, it said, restricted contracts to either 17.5 hours (part‑time), or 35 hours (full‑time). Those were the only two options available to the Respondent.

It was the Respondent’s evidence that it had no discretion to award a permanent 28‑hour contract, as doing so would breach funding rules and could jeopardise funding.

Ms Collins stated that she had applied this rule consistently to all employees, and that other staff requesting reduced hours had been offered only the same options.

Ms Collins’ evidence was that it had, nevertheless, provided a range of accommodations, including a phased return to work, reduced workload and client allocation, remote working, ergonomic adjustments and breaks and a temporary four‑day week, subject to operational feasibility.

It was further contended that the temporary four‑day arrangement could only be implemented once the Complainant’s hours were backfilled, as otherwise it would negatively impact service delivery, given that each missing workday meant fewer clients could be seen.

The Respondent submitted that it had taken the necessary steps where it had engaged with Occupational Health and medical advice and it offered accommodations within operational limits.

Any permanent reduction outside funding rules would constitute a disproportionate burden.

In relation to disability, the Respondent maintained that there was no medical evidence classified the condition as a disability during the relevant period. Therefore, the statutory duty to provide reasonable accommodation had not been triggered at that time. Finally, the Respondent submitted that it remained willing to continue temporary adjusted arrangements, subject to review and operational capacity, but denied that it had discriminated against the Complainant or failed in its obligations under the legislation.

The Respondent relied upon its legal submissions and in particular Teresa Mitchell v Southern Health Board  [AEE/99/8], Graham Anthony & Company Ltd v Margetts [EDA 038], Waterford Senior Care Limited v Liam Tabb [EDA1926], An Post v Stephens [DEC-E2018-005], Houses of the Oireachtas v Hickey [EDA1918] , A Worker v An Employer [EDA1927] and Nano Nagle School v Daly [2019] IESC 63.

The parties’ respective positions may be summarised as follows.

The Complainant contends that the Respondent failed to conduct an individualised assessment of her circumstances and instead relied on a rigid funding rule, resulting in a failure to provide reasonable accommodation. The Respondent asserts that the Complainant did not have a disability within the meaning of the Acts at the material time and, in any event, that it was constrained by funding rules and had provided reasonable accommodations within those limits.

Section 2 of the Employment Equality Acts 1998 – 2015 (the “Acts”) defines “disability” as:

“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;”

Section 6 of the Acts provides the definition of discrimination:

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

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

(i) exists

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

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

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

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

Section 6 (2) of the Acts sets out the disability ground: --

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

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

Burden of Proof

Section 85A of the Acts sets out the burden of proof:

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

Therefore, the burden of proof is on the Complainant to show that she was treated less favourably on account of her disability and was not reasonably accommodated.  To this end the Complainant has to establish both the primary facts upon which she relies and also that those facts are of sufficient significance to raise and of discrimination.

Disability

There was a dispute as to whether the Complainant had a disability. Therefore, the first issue to address is whether the Complainant has a disability within the meaning of Section 2 of the Acts

Section 2 of the Acts, particularly subsections (b) and (c), have are considered:

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

Vestibular Migraine was found to be a disability for the purposes of the English Equity Act 2010 by the Employment Tribunal’s in 4105494/2022 Mr E Milrine v DHL Services Ltd. While there does not appeared to be a similar finding in this jurisdiction, the ET decision is accepted.

The medical evidence before me, including the GP report of 2 July 2024 and the Occupational Health report of 22 July 2024, confirms that the Complainant was diagnosed with Vestibular Migraine. The evidence establishes that this condition caused ongoing symptoms including dizziness, fatigue and headaches, which impacted her capacity to sustain full‑time work without accommodation.

Both medical sources recommended reduced working hours (specifically a four‑day week), alongside additional supports such as breaks, ergonomic adjustments and remote working.

It is notable that neither medical practitioner expressly labelled the condition as a “disability”. However, the Complainant’s submission is accepted that the determination of whether a condition falls within the statutory definition is a legal, not medical, question.

Having regard to the statutory definition, and in particular Section 2(c) of the Acts, I am satisfied that the Complainant’s condition constituted a malfunction affecting bodily function and had more than a trivial or temporary impact on her ability to carry out normal working duties.

Accordingly, I find that the Complainant had a disability within the meaning of the Acts during the relevant period.

Reasonable Accommodation

The other issue is whether the Respondent complied with its obligation under Section 16(3) of the Acts to provide appropriate measures.

The evidence established the Complainant requested a four‑day week (28 hours) supported by medical evidence and Occupational Health recommended such an arrangement, subject to operational feasibility.

The Respondent refused the request on the basis that its funder (CIB) only permitted contracts of 17.5 or 35 hours. Instead, a temporary four‑day arrangement was offered, but only subject to backfilling and was not consistently in place.

While it is accepted that the Respondent engaged to some extent with the Complainant and implemented certain measures (phased return, reduced workload, remote working, ergonomic supports), the evidence demonstrates that the Respondent did not properly assess the feasibility of the specific accommodation requested.

In particular, the Respondent relied on a general funding rule without demonstrating that it had explored whether flexibility or exceptions could be applied. There is insufficient evidence of a substantive, individualised assessment of whether a 28‑hour arrangement could be implemented on a temporary or longer‑term basis. The Respondent did not adequately engage with the clear and consistent medical recommendation for reduced hours.

I am satisfied that reliance on a general funding constraint, without further enquiry or analysis, does not discharge the employer’s obligation under Section 16 of the Acts. Employers must do more than apply blanket policies; they must consider the individual employee’s circumstances.

Furthermore, while funding constraints may be relevant to the question of disproportionate burden, the Respondent has not demonstrated, on the evidence, that granting the requested accommodation would have imposed such a burden.

It is also noted that the Complainant was required to use annual leave to manage her condition, which is not an appropriate substitute for reasonable accommodation.

find that the Complainant has established facts from which discrimination may be presumed. The burden therefore shifted to the Respondent.

For these reasons, I find that the Respondent has failed to discharge that burden.

Accordingly, I find that the Complainant was a person with a disability within the meaning of the Acts. The Respondent failed to provide reasonable accommodation as required under Section 16(3) of the Acts and the Complainant was subjected to discrimination on the disability ground.

find that the Respondent discriminated against the Complainant on the disability ground, contrary to Section 6 of the Acts, and failed to comply with its obligations to provide reasonable accommodation under Section 16(3) of the Acts

In accordance with Section 82 of the Acts, I order the Respondent to:

§  Pay the Complainant compensation in the amount of €20,000 for the effects of the discrimination.

§  Review the Complainant’s working arrangements, in consultation with her and having regard to updated medical evidence, with a view to implementing appropriate reasonable accommodation, including consideration of reduced working hours or equivalent measures.

§  Ensure that its policies and procedures are reviewed to provide for individualised assessment of reasonable accommodation requests based on medical evidence, including where external funding arrangements apply.