Background:

The Complainant suffered from stress and anxiety with underlying depression and had been treated for anxiety by her GP, for several years. The Complainant made her direct manager aware of her difficulties, and the treatment which she was receiving, shortly after she commenced employment in 2019.

On the morning of 14th August 2021, the Complainant went to work and opened the pub. The Complainant felt an attack of anxiety and panic coming on. She felt overwhelmed and extremely low. The Complainant sent a text message to her Manager telling her that she could not continue her work that day and asking her whether it was possible that somebody else could provide cover. The Complainant’s Manager telephoned the Complainant and stated that she would be at the pub in 45 minutes and would let the Complainant leave at that point. A short while later, while waiting in the pub, the Complainant received a voice note message on WhatsApp from her manager.

The content of the voice note stated that the Complainant was “f*****g killed with her nerves” and that “she has to go, so I have to get rid of her now”.  The Complainant left the premises in shock.  She sent a text to her manager letting her know that she had received the voice note which had clearly been intended for some other recipient. The Respondent replied apologising and stated she never intended to hurt the Complainant. The Complainant received further text messages from the Respondent stating the Complainant could return to work when she felt ready.

The Complainant tendered her resignation in December 2021, citing the stress and humiliation suffered by her following the voice message.

The Complainant submitted the decision to dismiss her was taken immediately upon the occurrence of her panic attack on the 14th August, 2021 and that this represented treatment of the Complainant based directly on her disability.

The Adjudication Officer noted that in cases of constructive dismissal, there is usually an obligation on the Complainant to utilise the grievance procedures, however, in this case due to the mental health difficulties of the Complainant, it was accepted that it was not possible for her to do so.

Outcome:

In the circumstances of the case, the Adjudication Officer found that the Complainant was discriminatorily constructively dismissed and awarded her the sum of €10,000 compensation for the effects of the discrimination. However, the Adjudication officer did not uphold the complaint regarding the Respondent’s failure to provide reasonable accommodation.

Practical guidance for Employers: 

Employers should note that in a claim of constructive dismissal, the onus of proof rests with the Complainant to prove that the conduct of the employer was so unreasonable that that the employee cannot fairly be expected to put up with it any longer, and the employee is justified in leaving. Interestingly, the Adjudication Officer noted in this case that it was not possible for the Complainant to utilise the grievance procedure (which is usually required in constructive dismissal cases) due to her mental health difficulties.

Employment law provides that there is a responsibility on an employer to make reasonable accommodation for an employee with a disability.  In this case, the Adjudication Officer found that the Respondent had provided reasonable accommodation as her working hours were adjusted to mitigate the impact on her mental health.

The full case is here:
https://www.workplacerelations.ie/en/cases/2023/march/adj-00037167.html