Complainant receives €29,000 in compensation in disability discrimination
Background
The Complainant, an educational sales representative with Lupus SLE, claimed disability discrimination and victimisation under the Employment Equality Act 1998. Diagnosed in 2013, her condition caused joint pain, restricting her ability to lift. She informed the Respondent in 2022 but received little support. In March 2023, a driver and lifting assistance were introduced, yet the Respondent maintained that lifting remained an essential job requirement. Following occupational health advice limiting her to lifting 3kg, the Respondent deemed her role unviable.
On 20 June 2023, she was informed that her position was no longer sustainable and was offered an alternative role, which she declined, feeling unqualified. Her employment was terminated on 22 August 2023. In November 2023, she found a new job with lower pay but was able to perform similar duties with accommodations. She argued that the Respondent failed to assess her ability to work with reasonable accommodations, acted in bad faith, and caused her financial loss, stress, and emotional distress.
The Respondent denied any discrimination, asserting that her dismissal was solely due to her inability to perform key job duties. While acknowledging her medical condition, it disputed whether it met the legal definition of a disability under the Act. The Respondent maintained that assigning a colleague to handle lifting exceeded its obligations and that the alternative role offered was reasonable, though she chose not to accept it.
Complainants view
The complainant, diagnosed with Lupus SLE, alleged disability discrimination under the Employment Equality Act 1998. Her condition, recognized as a disability under Section 2(1)(a), caused joint pain, limiting her ability to lift. The respondent was aware of her condition since her employment began in 2019 and was formally notified of its impact in April 2022.
The respondent failed to provide reasonable accommodations, disregarding medical evidence, neglecting to explore alternatives, and failing to assess whether she could perform her role with a 3kg lifting limit. The internal process was biased and pre-determined, denying her input and timely notice of employment risks. She faced discrimination due to this flawed assessment and lack of accommodations.
She continued in a similar role with her new employer without issues, proving reasonable accommodations were possible. The respondent subjected her to a predetermined review process after she raised health concerns, amounting to victimisation under Section 74(2). Her dismissal was unlawful and based on her disability, causing significant financial loss, stress, and emotional distress.
Complainant’s Evidence
The complainant detailed her qualifications, career, and experience before joining the respondent. Diagnosed with Lupus SLE in 2013 after extensive testing and treatment, she worked to manage her condition. She joined the respondent in 2019, undergoing a pre-employment medical and training before starting her sales representative role.
Her job involved transporting and demonstrating books to teachers. When unable to meet teachers, she left books in staffrooms. A storage unit was later provided for her stock. In September 2020, she began experiencing health issues and applied for reimbursement of medical expenses for a wrist strap and ice packs.
In April 2022, she formally informed the health and safety committee about her condition and lifting challenges, but no action was taken. She reiterated her concerns via email in January 2023, again receiving no specific response. In January 2023, she was referred for an occupational health assessment, which led to restrictions on lifting and a recommendation to wear a wrist splint.
By March 2023, a warehouse colleague was assigned to accompany her on school visits, drive her, and handle lifting duties. This arrangement lasted until June 2023. However, in June, the respondent deemed her role unviable due to her lifting restriction and proposed an alternative position. She found the new role unsuitable due to its scope, required skills, and high-pressure targets.
On 22 June 2023, the respondent formally confirmed her sales representative role was not sustainable and awaited her decision on the alternative job. She perceived the communication as threatening and contested the decision, raising a formal complaint. On 3 July, her GP certified her unfit for work due to stress. Her solicitors sought mediation, but the respondent declined engagement. On 8 August, the CEO decided to terminate her employment without a meeting.
She started a new job on 6 November 2023 with lower pay but successfully performed similar duties with accommodations. She argued the respondent could have provided similar adjustments but failed to do so.
Respondents view
The complainant has not established a prima facie case of discrimination under section 85(A) of the 1998 Act. Relevant case law on the evidential burden was cited.
The respondent questioned whether Lupus SLE qualifies as a disability under the Act. While acknowledging the complainant’s condition, the respondent was unclear on how it met the legal definition of disability.
The complainant did not provide evidence of discrimination in her employment conditions or identify a comparator. Additionally, she failed to establish a protected act prior to the alleged adverse treatment, which is essential for a victimisation claim. Raising concerns about health does not qualify as a protected act under the Act.
The respondent denies discrimination and asserts that reasonable accommodations were not feasible. The complainant could not fulfill key job requirements, such as lifting and carrying more than 3kg, which is essential for a sales representative demonstrating products. The accommodations she sought conflicted with the company’s sales strategy and would impose an undue burden. The respondent offered her an alternative role that met her needs, but she declined to engage with the proposal. Her employment was terminated on capability grounds following a fair process.
The complainant’s own account and medical evidence confirmed she was unable to perform her job safely. The respondent’s actions to ensure her safety have led to this discrimination claim. Despite not being obligated, the respondent offered her a well-suited alternative role, which she did not consider.
The complainant’s core argument is that the company did not alter its sales model to accommodate her. However, the offer of an alternative role demonstrates the respondent’s efforts to go beyond its obligations.
The respondent outlined its commitment to inclusivity, employee well-being, and the context of these proceedings in written submissions.
Summary of Sales Manager Evidence
Mr A.W, a Sales Manager since 2012, described the respondent’s business, sales process, and the hands-on nature of the sales representative role. Each representative manages a geographic area, interacting directly with teachers and demonstrating books in person to secure listings on school book lists.
Mr A.W conducted two interviews with the complainant in 2019, where the role was explained in detail. He did not believe the job could be done with only one book per school visit.
During the COVID-19 pandemic, books were mailed to teachers, but this was an exception. Once schools reopened, both the respondent and its competitors resumed in-person presentations.
Mr A.W first learned of the complainant’s Lupus SLE in April 2022 but was unaware of its full impact until the April 2024 hearing. He was informed in early 2023 that she could lift only one book at a time but was not involved in deciding how to address this limitation.
At a meeting on April 5, 2023, requested by the complainant, Mr A.W discussed her proposal to mail books but did not address funding for disability support. At a later meeting on June 20, 2023, he agreed that the 3kg weight restriction made the role unmanageable. He did not recall a box trolley being discussed but considered it impractical.
Mr A.W believed the complainant was well-suited for an alternative CPD and Development Executive role. However, after the June meeting, she went on sick leave, and his only further involvement was receiving medical certificates.
Julie G’s Evidence
Ms. G, the Commercial Director, was involved in the complainant’s hiring process and ensured applicants understood the job’s demands.
She first learned of the complainant’s lifting issue in April 2022 but believed it had been resolved following contact with the health and safety committee. In early 2023, the situation escalated medically, leading to a temporary measure where a colleague assisted the complainant. The witness only became aware of the 3kg lifting restriction in May 2023 after receiving a revised occupational health report.
On April 5, 2023, Ms. G met with the complainant to discuss the March 14 occupational therapy report. The 3kg restriction was not discussed. The complainant shared that lifting could trigger flare-ups, and the witness decided to continue the colleague’s assistance. The complainant suggested posting books, but the sales manager explained why this was not viable. After the meeting, Ms. G spoke to Mr. M about disability support funding but did not personally follow up.
A new role in the primary sector was being developed, and based on the complainant’s situation, Ms. G suggested she would be a good fit.
At the June 20 meeting, the complainant was informed that the sales representative role was no longer feasible due to the lifting requirement and was asked to consider the new position. She was encouraged to discuss it with Ms. G and the CEO, but she did not engage. The complainant also did not respond to an email on June 22 with the job description. It was made clear that declining the new role meant her current role would end. Ms. G fully expected the complainant to accept, as the alternative role involved no lifting and posed no risk to her health. She did not agree with the complainant’s objections to the role.
Finance Director Evidence
Mr. M, the Finance Director with HR responsibilities, was part of the management team and oversaw health and safety.
From January 2023, medical reports indicated the complainant’s role posed health and safety risks. Though she mentioned Lupus SLE in April 2022, the witness believed she was fine at the time. The January 19, 2023, report deemed her fit for work but recommended adjustments, leading to an email with suggestions on February 8. Soon after, an occupational therapy report approved her for light duties, including carrying one book. The witness consulted the therapist to clarify “light duties” and, along with Ms. G, decided to assign an assistant. This colleague handled driving, loading, and carrying materials into schools.
The complainant requested a meeting to discuss the March 2023 occupational therapy report, but the witness saw no major differences from the February report. Due to personal leave, he asked Ms. G to check on the complainant’s situation. Upon returning, he followed up on May 11 to confirm if she was fit for work post-wrist splinting.
A May 29 report advised against lifting boxes or multiple books, leading to a June 7 referral to occupational health. By June, three reports confirmed a 3kg lifting limit, with occupational health advising it for at least six months. The prognosis was uncertain, despite hopes that rest and treatment would improve her condition.
Given the company’s sales model, the only way to accommodate her restriction was providing an assistant. On June 14, the respondent shared the June 12 occupational health report and planned a meeting with the complainant, Mr. Wright, and Ms. G. By June 30, the only option was for the complainant to accept the alternative job, as her original role was no longer feasible. The witness’s involvement ended on July 19, 2023.
Summary of Ms H Evidence
Ms. H, the CEO since 2008, oversees all company operations. The respondent prioritizes employee health and safety.
Ms. H handled the appeal regarding the termination of the complainant’s sales role. She was aware that the complainant rejected the alternative role, as indicated in a July 19 letter. Ms. H reviewed the appeal file, focusing on medical evidence, accommodations, and possible adjustments. She conducted a thorough review of Mr. M decision, considering both the complainant’s health and potential accommodations. The complainant’s sales representative role was terminated on June 20, 2023, but it was expected she would continue in the alternative role.
Findings and conclusion
The claims referred to the Workplace Relations Commission on 13 July 2023 under section 77 of the Employment Equality Acts 1998-2015 were of discrimination on grounds of disability and victimisation.
Decision
Section 79 of the Employment Equality Acts 1998 – 2015 required the Adjudicator make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
The Adjudicator found that there was a contravention of the Acts in respect of reasonable accommodation and order compensation, payable by the respondent to the complainant, in the sum of €29,000 for this discrimination on grounds of disability.
The Adjudicator found that the claim of victimisation is not well founded.
Our Commentary
Employers must actively and meaningfully engage with employees who disclose disabilities to ensure that reasonable accommodations are considered and implemented appropriately. This process involves thoroughly evaluating whether the employee can perform the essential functions of their job with the necessary adjustments, while carefully documenting each step of the assessment. A failure to genuinely consult and collaborate with the employee can result in claims of discrimination, as it may appear that the employer is not taking the employee’s needs seriously or making an adequate effort to provide fair accommodations.
When proposing alternative roles, it is essential that employers tailor these opportunities to the employee’s abilities and qualifications. The alternative roles should not be ones that the employee perceives as unsuitable, overly demanding, or irrelevant to their skills. Presenting roles in this way may give the impression that the employer is not genuinely committed to finding a reasonable accommodation, which could undermine the employee’s confidence in the process and potentially lead to legal claims. Employers should make a sincere effort to offer roles that align with the employee’s capabilities and ensure that these roles are truly feasible within the context of the employee’s skills and experience.
Furthermore, it is critical for employers to implement transparent and fair processes when reviewing accommodation requests and making decisions about potential changes to an employee’s role. The decision-making process should be impartial, following the guidelines set out in equality legislation to avoid any perception of bias or unfair treatment. Effective communication is key. Employees should be kept informed throughout the process with clear, timely updates, and be given opportunities to provide input and feedback. Failing to follow these principles could lead to claims that the process was pre-determined or discriminatory, further complicating the employer’s legal standing and employee relations.
Respondent wins case by Complainant claiming gender discrimination under pay disparity
Background
The Complainant worked for the Respondent from February 2011 to April 2023 and was promoted to Depot Manager in July 2020. In July 2024, she filed a complaint with the WRC, claiming gender discrimination and unequal pay. She alleged that male colleagues in similar roles were paid more, even after raising the issue with management, which took no action. Upon her resignation, two male managers were hired to replace her, earning significantly more. The Complainant argued that her performance was satisfactory, she took on unpaid responsibilities, and provided examples of male colleagues earning more. She also highlighted her 12 years of industry experience and role responsibilities compared to her higher-paid peers, alleging a systemic pay gap based on gender.
The Respondent denied the claim, stating her salary as Depot Manager was based on management experience, not gender. They pointed out that her salary had increased from €34,510 in 2021 to €43,137 in 2022. The Respondent explained that the male comparators, Mr. X and Mr. Y, had more experience, with Mr. X being hired after her resignation and Mr. Y having 20 years in the industry. Salaries for Depot Managers in 2022 ranged from €34,510 to €55,000, based on experience. A HR Generalist testified that salary placement followed a scale based on experience, not gender. The Respondent argued that the Complainant did not provide valid comparators or evidence of gender-based pay discrimination and requested dismissal of the complaint, noting that the Complainant would likely have advanced on the salary scale had she stayed with the company.
Summary of Complainant’s case
The Complainant worked for a company from February 2011, transferring to the Respondent on July 16, 2020. Promoted to Depot Manager in July 2020, overseeing three depots, she claims she was paid less than male colleagues in similar roles. Despite raising this issue repeatedly with supportive managers, no action was taken. After her departure, two male managers were hired at significantly higher salaries. The Complainant believes her work was consistently satisfactory, including unpaid additional duties. She provided names of higher-paid male colleagues, including the two replacements (X & Y), and submitted a document detailing the events leading to her resignation.
The Complainant cited her 12 years of experience, extensive people management skills, and waste management expertise. Despite the Managing Director’s encouragement and her successful Depot Manager application, her salary was considerably lower than a manager at another depot. After she left, her male replacement (X) earned more, and she believes her pay would never have matched his. She argues that her lower pay as a female employee was the reason for her complaint to the WRC. She maintains that, regardless of the Respondent’s claims, the two male managers were paid more.
The Complainant confirmed she had a full opportunity to present her case and information.
Summary of Respondents case
The Respondent denies unequal pay. The Complainant was promoted to Operations and Planning Supervisor in July 2022 (€34,000, later €34,510 after review) and then to Depot Manager in August 2022 (€43,137.50), resigning in April 2023.
The Respondent argues the Complainant’s chosen comparators, X and Y, are inappropriate. X started nine months after the Complainant left and had significantly more (15 years) managerial experience. The Respondent cites a Supreme Court case (National University of Ireland Cork v Ahern) stating comparators must be relevant to other employees. They provided a table showing five Depot Managers’ details (including two women) with salaries and experience, arguing the Complainant’s lower pay was due to less experience, not gender. The 2021 Depot Manager salary range was €34,510-€46,690, and in 2022, €43,137.50-€55,000. The Respondent states that pay is based on experience, not gender.
HR Generalist Cora Kinnarney testified that X was hired nine months after the Complainant left due to recruitment difficulties and his 15 years’ experience. Y had 20 years of general management experience. The Respondent uses a pay scale based on relevant management experience. Kinnarney confirmed the Complainant’s gender was not a factor in her salary placement, nor was it for X or Y.
The Respondent’s closing submission emphasized that allegations are not evidence, citing legal cases (Mitchell v Southern Health Board and Valpeters v Melbury Developments Ltd). They argued the Complainant must provide factual evidence directly linking her gender to the pay difference. The Respondent stated the Complainant’s role had a salary range, and her pay within that range was not gender-based. They considered her a valued employee, noting her significant pay increases and suggesting she would likely have reached parity with colleagues over time.
The Respondent concluded that the Complainant failed to establish a case of discrimination or identify appropriate comparators performing like work in comparable situations, and her complaint should be rejected.
Findings and conclusion
WRC and Labour Court precedent requires complainants to first present facts suggesting less favorable treatment based on the claimed discriminatory ground (in this case, equal remuneration).
The Labour Court, citing Southern Health Board v Mitchell, emphasizes that complainants must prove, on the balance of probabilities, primary facts that raise a presumption of unlawful discrimination. Only then does the burden shift to the respondent to prove no breach of equal treatment.
Arturs Valpeters v Melbury Developments Ltd clarifies that these facts vary and aren’t limited to specific categories, but they must be significant enough to raise a presumption of discrimination and be supported by credible evidence. Speculation and unsupported assertions are insufficient. Section 85A clearly places the burden of establishing these primary facts on the complainant.
The Adjudicator found the wage disparity between the Complainant and her comparator(s) was proportionate and related to their point on the established pay scale applicable to the role.
No evidence was put forward by the Complainant to support her assertion that her point on the scale was related to her gender. The Complainant has accepted that she was moving up the incremental scale and the Adjudicator accepted the Respondent’s view that had she remained in employment she could, potentially, continue to receive regular increments.
Considering all of the foregoing, the Adjudicator found that the Complainant did carry out like work to that carried out by X and Y but she had not established a prima facie case of discrimination that meets the requirements of Section 85A of the Act in respect of this complaint.
Decision
Section 79 of the Employment Equality Acts, 1998 – 2015 requires the Adjudicator to make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
The Adjudicator decided that the Complainant was not discriminated against by the Respondent.
Our Commentary
Promoting Pay Equity in Ireland: Practical Steps for Employers
Irish employment equality legislation, primarily the Employment Equality Acts 1998-2015, prohibits discrimination in employment, including pay, on nine protected grounds: gender, marital status, family status, age, disability, religion, race, sexual orientation, and membership of the Traveller community. To ensure compliance and foster a fair and equitable workplace, employers should implement robust practices regarding pay transparency and decision-making. The following expands on the provided text, incorporating key aspects of Irish employment law:
- Transparent Pay Scales and Objective Criteria
Establishing and communicating transparent pay scales is crucial for demonstrating a commitment to equal pay. These scales should be based on clear, objective criteria directly related to the job, such as:
- Experience: Years of relevant experience, specific skills acquired, and proven track record.
- Qualifications: Educational qualifications, professional certifications, and specialized training relevant to the role.
- Responsibilities: Scope of the role, level of autonomy, complexity of tasks, and managerial responsibilities.
- Performance: Performance reviews, achievement of targets, and contributions to the organization (ensure performance reviews are themselves objective and non-discriminatory).
- Market Value: While market value can be a factor, it should be carefully considered alongside the other criteria to avoid perpetuating existing pay gaps. Researching industry benchmarks can be helpful.
Simply stating a salary range is insufficient. Employers should clearly define how each criterion is weighted and how it translates to placement within the pay scale. This transparency allows employees to understand how their pay is determined and provides a robust defense against potential discrimination claims. It is also important to regularly review and update pay scales to ensure they remain relevant and non-discriminatory. Communicating these scales and the criteria to all employees is essential.
2. Thorough Documentation of Decision-Making:
Meticulous record-keeping is vital for demonstrating fair and non-discriminatory practices. Employers should maintain comprehensive documentation for all employment decisions related to pay, including:
- Recruitment: Job descriptions outlining required skills and experience, interview notes, selection criteria, and justification for the chosen candidate’s starting salary.
- Promotions: Clear criteria for promotion, performance evaluations, records of internal applications, interview notes, and rationale for promotion decisions, including any associated salary increase.
- Salary Reviews: Documentation of performance evaluations, justifications for salary adjustments (increases or decreases), and comparisons to the pay scale criteria. Minutes of meetings where pay decisions were discussed should also be retained.
- Pay Adjustments: Detailed reasons for any pay adjustments outside of standard salary reviews, ensuring these reasons are objective and non-discriminatory.
This documentation serves as crucial evidence in the event of a dispute, demonstrating that pay decisions were based on legitimate, non-discriminatory factors. It also facilitates internal audits to identify and address any potential pay gaps. Under the Employment Equality Acts, the burden of proof can shift to the employer to demonstrate that pay differences are not discriminatory. Robust documentation is essential to meet this burden.
3. Training and Awareness for Managers and HR Staff:
Effective training programs are essential to ensure that all staff involved in pay decisions are fully aware of their obligations under Irish employment equality legislation. Training should cover:
- Employment Equality Acts: Detailed explanation of the nine protected grounds and the prohibition of discrimination in all aspects of employment, including pay.
- Equal Pay Principles: Guidance on the concept of equal pay for like work, work of equal value, and the material factor defense (allowing for genuine differences in pay based on objective, non-discriminatory factors).
- Bias Awareness: Training on unconscious bias and how it can influence decision-making, particularly in relation to gender and other protected characteristics.
- Best Practices: Practical guidance on how to conduct fair and objective recruitment, promotion, and salary review processes.
- Record-Keeping: Emphasis on the importance of accurate and thorough documentation.
- Handling Complaints: Clear procedures for addressing pay-related complaints and ensuring that they are investigated promptly and impartially.
Regular refresher training is crucial to reinforce these principles and keep staff up-to-date on any changes in legislation or best practices. Creating a culture of awareness and accountability regarding pay equity is essential for fostering a fair and inclusive workplace. Employers should also establish clear policies and procedures on equal pay and make these accessible to all employees. By implementing these measures, Irish employers can proactively address pay equity concerns, minimize the risk of discrimination claims, and build a workplace where everyone is valued and rewarded fairly.