In the case of Dylan O’Riordan v Omniplex Cork Limited (ADJ-00051601), the Complainant brought a successful case under the Employment Equality Acts 1998-2015 (“the Acts”) on the basis that he was discriminated against on the grounds of disability, specifically, that he is autistic and reasonable accommodations were not provided for him by the Respondent.
Facts:
The Complainant’s Case:
The Complainant began employment with the Respondent in March 2022 and resigned on 7th June 2024. In that time he was promoted to Duty Manager.
The Complainant’s case was that he is autistic the Respondent was made aware of this on his application form and that while he did not require any reasonable accommodations at the commencement of his employment, later certain accommodations were required. The Complainants case was that having asked for such accommodations they were not forthcoming.
At the hearing, the Complainant’s wife gave evidence that in September, 2023 she spoke with the General Manager (hereafter “the GM”) and discussed the Complainant’s mental health.
She said she emphasised that the Complainant needed accommodations he had been seeking for some months due to his disability and that he was not receiving adequate rest periods between shifts. She said the GM expressed concern also about the deteriorating situation over the previous 12 months. The Complainant’s wife stated that the GM told her she did not consider Autism a disability but a ‘superpower’. She stated that although she understood the GM’s intention might have been to highlight positive aspects of autism, her comments were inappropriate given the context of the challenges the Complainant was facing. She stated that this exchange highlighted a concerning misunderstanding and unwillingness to acknowledge both her husband’s disability, and the necessity of reasonable accommodations for him in the workplace.
The GM denied ever using the term “superpower” in relation to autism and stated that her only concern was for the Complainant. She said she had accommodated the Complainant on many occasions and that she only ever had his welfare at heart.
The WRC decision reflects the Complainant’s description of the impact of autism on his life. He indicated that he had meltdowns and significant deterioration of his mental health in the last months of his employment. He contended he told his manager on many occasions he was having severe difficulties and described episodes relating to the situation. He indicated that he had a particular difficulty on 22nd October and had to leave his shift early.
The Complainant stated that the GM emailed him on 24th October expressing her concern about his well being, seeking him to get medical help and providing information on what supports could be provided.
The Complainant stated that he went out on sick leave from 28th October, 2023 and it appears he remained on sick leave until he resigned from his employment on 7th June, 2024.
According to the Complainant, the correspondence between the Complainant and the GM continued during that period and over time also included others referred to as “AM” and “HRM”. According to the Complainant the correspondence included the Complainant advising of the deterioration in his mental health and the lack of support from the Respondent. The Complainant indicated that he raised his discomfort dealing with the GM and that she refused his reasonable accommodation requests.
According to the Complainant there was a meeting on 17th November, 2023 (but some disagreement about the minutes of that meeting) and later a referral to occupational health. It appears the Complainant outlined grievances to the Company which were later summarised as involving “Request for consistent scheduling”. “2 days off to rest and recover” and “Not being placed on exclusively closes”.
According to the Complainant, he and the HRM exchanged emails for over six months, at the end of which he felt he was getting nowhere and he decided to take his case to the WRC.
The Respondent’s Case
The Respondent denied the claim in its entirety.
The Respondent put forward a number of arguments including arguing that the Complainant had failed to demonstrate he was treated less favourably than a person of a different status
On the question of an employer’s duty to provide reasonable accommodation the Respondent submitted that as soon as the Complainant completed an occupational health assessment which provided medical reasonable recommendations, the Respondent communicated with the Complainant extensively with suggestions of how the accommodations could be facilitated in work and welcomed the Complainant’s feedback.
The Respondent outlined in detail from its perspective the correspondence and engagement that ensued between the parties following the incident in October, 2024. The Respondent specifically outlined correspondence that allegedly took place between the parties from February 2024 onwards which examined the issue of shift patterns and suggestions were allegedly made by both sides on how these might be adjusted. It appears no agreement was reached on the proposed shift patterns.
According to the Respondent they also confirmed that the grievance the Complainant had raised contained 15 extensive allegations/issues and these were being fully investigated. According to the Respondent responses were also given during this time on other concerns the Complainant had raised.
According to the Respondent they were making continued attempts to get the Complainant back to work and find a solution.
The Respondent indicated that on 1st April, 2024 the Complainant sent an email responding to suggestions and stating he was not happy with the shift pattern options due to the limited time off between the shifts. In respect of a proposal of Monday and Tuesday as the proposed days off, the Respondent stated that the Complainant indicated he was agreeable to these as days off but the fact this was stated to be “under review” concerned him and frustrated him. It was in this email he notified the Respondent he was lodging a claim with the WRC.
The Respondent described further attempts it allegedly made to agree a work pattern but indicated the Complainant did not accept the invitation to discuss matters and confirmed that he was submitting a complaint to the WRC.
The Respondent’s position was that internal workplace procedures were not given time to conclude and the Complainant chose to not fully utilise them. The Respondent submitted it was fully committed to finding a workable solution guided by medical advice on how best to implement the reasonable accommodations and that throughout the process they made reasonable efforts to try find a solution.
Decision: The Adjudicator, Gaye Cunningham, referred to the case of Henry Denny v Rohan (Determination EDA1310) which followed a House of Lords decision stating that in cases of less favourable treatment a comparator can be actual or hypothetical. The Adjudicator confirmed that in this case the appropriate comparator was ‘a person in a similar role who does not have a disability’. It was common case that accommodation was provided for pregnant employees and students in relation to arranging suitable shifts. The Adjudicator commented that it appeared these employees were facilitated with shifts that suited their circumstances, however, no such accommodation was afforded to the Complainant. The Adjudicator referenced that some of the reasons given were on account of his position as fulltime duty manager. Nonetheless she found that as accommodations were provided to others, the Complainant had established a prima facie case of discrimination and the burden of proof shifted to the respondent to prove discrimination has not occurred.
The AO gave consideration to the efforts made by the Respondent during a lengthy period to reach some agreement with the Complainant and the Adjudicator acknowledged the effort was made more complicated by the 16 separate grievances of the Complainant which required a significant amount of work. Nonetheless she found that “the point regarding the acute needs of the Complainant, given his situation was not fully addressed.”. The Adjudicator particularly noted that the absence of certainty in relation to the two consecutive days off to allow for adequate rest in the circumstances caused a significant difficulty for the Complainant and noted that the Occupational Health Reports made the requirement for consistency and rest clear in that regard.
The Adjudicator determined that the Respondent did discriminate against the Complainant by failing to provide him with reasonable accommodations and awarded the Complainant €12,000 compensation for the effects of the discrimination. The Adjudicator also ordered the Respondent to engage in awareness training to promote ‘a positive management approach to staff with neurological complex conditions such as autism”.
Takeaway for Employers: The Respondent in this case appears to have engaged with the Complainant over a protracted period of time seemingly providing him with sample rosters for consideration and taking into account his feedback. However, it seems that this was too little too late. The AO was aware of the need for reasonable accommodations to not only be offered but to be dealt with clearly and consistently and in a timely manner.
The facts of this case are interesting in that it demonstrates that the needs of a neurodivergent employee may change at different times over the currency of an employment relationship. For example the employee might not need many (or any) reasonable accommodations at the initial stages of their employment but may require them later.
This case highlights the need for Employers to be Neuro-inclusive and also to act within an appropriate timeframe when a need for reasonable accommodation arises.
When dealing with neurodiversity in the workplace listening to the employee’s individual needs is paramount as every employee is unique. It is advisable for employers to undergo training and keep informed to ensure that their workplaces are neuro-affirming, safe places to be.
Link – https://www.workplacerelations.ie/en/cases/2024/october/adj-00051601.html
Authors – Nicola MacCarthy & Laura Killelea
18th November 2024
Anne O’Connell
Solicitors
19-22 Lower Baggot Street
Dublin 2.
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