In John-Paul Barbour-Hyland v Daa Plc Dublin Airport Authority (ADJ-00048082), the Complainant brought...

In Employee v Daa Plc Dublin Airport Authority (ADJ-00048082), the Complainant brought a complaint to the Workplace Relations Commission (“the WRC”) under the Employment Equality Acts 1998 – 2015 claiming that he was discriminated on the ground of disability.

Facts: The Complainant began working for the Respondent’s security department on 23 May 2022 and was terminated by the Respondent on 30 March 2023. The Complainant was unable to successfully pass certain security exams due to his dyslexia, and so the Respondent transferred him an alternative role in Service Delivery in Operations in July 2022. The Complainant said that he accepted this role ‘under duress’ and he had a concern doing the role due to one of his disabilities. The Complainant attended a pre-employment medical screening on 4 August 2022, where he was deemed fit to do the role provided he rotated between indoors and outdoors due to being sensitive to sunlight. The Complainant began working in the Service Delivery role on 10 October 2022, and signed a new contract dated 12 October 2022. The Complainant was called to a meeting on 3 February 2022 by his Team Leader and was told he was late for work too often. The meeting did not discuss the Complainant’s performance generally but just focused on his timekeeping. The Complainant had been a few minutes late for work on six occasions and explained that his medication and IBS combined made it challenging for him to be always punctual. The Team Leader told the Complainant he understood and told the Complainant not to worry. The Complainant was then given a performance improvement letter which did not cite his explanations for being late nor the reassurances given to him by the Team Leader. On 30 March 2023 the Complainant was called to a meeting by his Team leader and a manager at which his employment was terminated due to lateness, absenteeism and falling below competency expectations.

The Adjudicator had to first determine whether the Complainant had a disability as set out in section 2 of the Act and if the Respondent was aware. The Adjudicator noted that the Complainant has dyslexia, a sensitivity to sunlight, and irritable bowel syndrome (IBS). The Adjudicator then had to consider whether the Complainant was discriminated against due to having a disability.

In assessing this, the Adjudicator considered that the Complainant attended an occupational health assessment. The Adjudicator gave considerable weight to the assessment provided by the examining doctor, which did not state that the Complainant’s conditions amounted to a disability. Further, the Adjudicator considered the following passage of the Labour Court in A Worker v An Employer EDA 1927, in finding that the Complainant had not established a prima facie case of discrimination, highlighted that the Respondent was “not provided with any medical evidence that the Complainant had a disability” and “could not have been expected to accept the Complainant’s assertions in the absence of medical evidence”.

The Adjudicator noted that the Occupational Health Assessment found that there was no medical impediment to the Complainant taking up the proposed role and that it noted that the Complainant had an “increased sensitivity to sunlight” which could be managed by “rotating frequently between working indoors & outside on particularly sunny days.” The Adjudicator held that the doctor’s report did not stipulate that this constituted or was linked in any way to a disability and there was no mention in the report of the Complainant having IBS or that he could not move trolleys for a prolonged period of time. In the circumstances, the Adjudicator found that in the absence of any medical evidence stipulating that the Complainant suffered from a disability, he had not established a prima facie case of discrimination.

Takeaway for employers: This decision places a high bar on what constitutes a disability under the Employment Equality Act. It appears from this decision that a medical report has to clearly state that an individual suffers from a disability in order for an employee to demonstrate that they have a disability and without this, the Complainant is unable to establish a prima facie case of discrimination on the ground of disability. This is extraordinary decision when the medical report did refer to the Complainant having a condition in relation to the sunlight which could be facilitated but it appears that the report has to go further than this in order to fall within the definition of a disability.

Link: https://www.workplacerelations.ie/en/cases/2024/june/adj-00048082.html

Authors- Jane Holian, Anne O’Connell