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WRC Awards 6 Months’ for Disability Discrimination re Promotion Regardless of Finding that Consideration of Absence Record Was Correct

Introduction: In the recent decision of the anonymised WRC case ADJ-00024794, Adjudication Officer Brian Dalton awarded the Complainant 6 months compensation, based on her remuneration at date of referral to the WRC, for discrimination on the grounds of disability, contrary to the Employment Equality Acts 1998-2015.

Facts: The Complainant had been successful at interview stage for a promotion – her appointment to the panel was subject to a reference which she requested from her manager. This reference proved to be unsatisfactory. It is accepted that the Complainant suffers from a mental health disability which results in her suffering from high levels of anxiety. It is stated that this information was shared with her manager.

The Complainant refers to several negative points in the reference from her manager such as ‘On one occasion [she] did not attend an important group meeting, and only came to light when an update from the meeting was requested. The reason given was that she experienced anxiety and had to return home.’ She states that her medical condition and associated symptoms have been used in a reference for the purpose of denying her this promotion and therefore is being treated differently than someone without a disability or with a different disability. This point, among other negative issues due to her disability such as appearing uncomfortable when communicating in groups, had never been discussed with the Complainant and contradicted positive feedback that she had allegedly received prior to that point.

The Complainant raised a grievance that subsequently concluded in stage 1 that while evidence shows that the manager did not sit down with the Complainant before writing the reference, there were mitigating factors for this such as her long-term absence as a result of her disability. It was recommended that she seek another reference from a different referee and that any absence issues should be addressed through an appropriate action plan. The Complainant did not seek another reference and was dissatisfied with this outcome.

Preliminary Issue: The Respondent argued that the complaint is void as it was not made within six months of the alleged contravention. The reference from the manager is dated  25th March 2019. The Complainant was informed by HR of the unsatisfactory reference on 9th April 2019. The following day the Complainant made a data access request for a copy of the reference and received a copy on 15th April 2019. This is when she concluded that she had been discriminated against on the basis of her disability.

The complaint was received by the WRC on 9th October 2019, more than the allowed 6 months after the date of the letter. The Complainant states that while the date of contravention was 25th March, she was only allowed access to it on 15th April. The Adjudication Officer determined that having due regard to the facts of the case, the Complainant lodged her complaint in due time arising from the failure of the Respondent to forward her a copy of the reference and that reasonable cause exists for this delay.

Decision: The Adjudicator determined that the Complainant raised the presumption of discrimination as the reference contains several remarks that link directly to the disability. However, interestingly he found that it was entirely reasonable for the reference to detail an absence record as it goes to the core of the capability to fulfil the contract and promotion. The other comments in the reference went to the Complainant’s performance and amounted to a performance review without the Complainant’s input. Therefore, a difference in treatment when compared against a person without a disability did occur as it is not practice to issue a performance review without first reviewing and discussing that assessment with the employee. The Respondent did not dispute that the Complainant has a mental disability, and it was ascertained that the Respondent knew about this disability, but the employer has consistently denied that discrimination took place. The Respondent argued that the performance review had not been done with the  Complainant prior to the reference being written due to her extensive absence during this period. The Adjudicator determined that direct discrimination on the ground of disability has taken place but took into account the fact that the Complainant did not appeal her grievance or submit a second reference when given the opportunity to do so, she effectively withdrew from the competition. On that basis he awarded the Complainant 6 months’ compensation for the discriminatory treatment based on the Complainant’s remuneration as a proportionate and dissuasive award.

Takeaway for the Employers: Employers should be aware that nothing adverse should be communicated in any form of reference if it has not been brought to the employee’s attention, particularly if it could be linked in any way to one of the 9 grounds of discrimination. However, where attendance is a core element of capability to carry out the role, it is not discrimination to detail a level of absenteeism, even if it is due to a disability.

Link  –  https://www.workplacerelations.ie/en/cases/2021/august/adj-00024794.html

Authors – Anne O’Connell and Hannah Smullen

26/08/2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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