WRC found the employee had been discriminated against on the basis of disability by being wrongly treated as immunocompromised, resulting in denial of promotion, and awarded €20,000 compensation.

The Complainant said he returned to work in June 2021 after cocooning from March 2020 due to Stills disease. Following an occupational health assessment in May 2021, he was deemed fit to work subject to risk-assessment guidelines and, he said, he was no longer “at risk” for Covid-19. A promotion competition arose in October/November 2021. He said his application was not accepted because management wrongly treated him as immunocompromised and already accommodated him in a low-contact role since 2019. He maintained the 2019 transfer had been prompted by severe personal circumstances (his son’s assault) rather than disability-related limitations. Further, his Stills disease had been controlled by medication and exercise since 2008. He lodged a grievance in December 2021. He said the January 2022 outcome misconstrued the reasons for non-shortlisting and accused him of “borderline defamatory” remarks, which he viewed as victimisation. He gave evidence of 26 years’ service and a €25k salary differential and sought compensation and a rerun of the campaign with appropriate accommodations.

The Respondent said it had reasonably accommodated the Complainant in September 2019 by moving him to the central hub because of his immunocompromised status and the need to minimise contact. When he applied for Site Manager in October 2021, they did not progress the application because he had not provided updated confirmation about Stills disease or his suitability for a high-contact role. They said Site Manager duties could not be diluted into a low-contact post. An interview was offered on condition of an occupational health assessment; they said the Complainant declined to proceed on that basis. Relying on duty-of-care considerations and prior accommodation, they said their approach was objectively justified and the Complainant had not met the Section 85A burden of proof. A director testified that the 2019 move addressed a life-threatening condition and that non-shortlisting related to the pre-existing autoimmune illness, not Covid.

The Adjudicating Officer found held that the Complainant was discriminated against on the disability ground when he was prevented from progressing in the Oct/Nov 2021 Site Manager competition. Although an OH assessment in May 2021 placed him at “normal” Covid risk and his Stills disease had required no special accommodation since 2008, the Respondent wrongly treated him as immunocompromised and already “accommodated” and failed to clarify matters or allow time to confirm suitability. The 2019 transfer was accepted as prompted by personal circumstances, not disability. On that basis, less favourable treatment was found in relation to the promotion process. However, victimisation was not made out. Given the passage of time and the fixed-term posts ending in Nov 2023, the competition was not set aside. Award was made in the sum of €20,000 compensation for the effects of discrimination and a direction that the Respondent carry out an appropriate risk assessment for the Complainant in advance of any future promotional opportunities.

Employers should:

•  Build promotion and placement decisions on current, role-specific information. This means clear essential duties, objective shortlisting criteria, and targeted occupational health input where health is relevant. Invite the employee to discuss reasonable accommodations before deciding. Record the rationale contemporaneously and communicate it plainly. 
  
  
• Standardise a promotion protocol. Also, train HR and managers on the Employment Equality Acts duties (disability, reasonable accommodation, burden of proof), unconscious bias, and grievance handling. Allow time for updated medical evidence and avoid exclusion based on outdated or assumed health risks. 
  
  
• Be sure to separate medical data from selection materials and apply “need-to-know” access with Data Protection oversight. Use a small reasonable accommodation panel for consistency. Track outcomes to audit fairness. Use neutral language in correspondence; avoid defensive or accusatory phrasing. Offer early resolution options if needed.

The full case can be found here.