Harry Phelan

Tusla- Child & Family Agency

Complainant failed to prove disability discrimination; future arrangement recommended by WRC.

The Complainant submitted that he suffered from long-standing mental health issues and remained under the care of St Patrick’s Mental Health Services. As part of his treatment, he attended a 22-week day programme on Tuesday mornings. Historically, his previous Line Manager had facilitated his attendance by allowing him to make up time lost by working additional hours, without needing to take annual or unpaid leave. However, under a new Interim Line Manager, the Complainant’s request for similar flexibility was denied. Instead, he was informed he could only use limited flexi-time, with the remainder requiring annual or unpaid leave. The Complainant asserted that there was no operational or cost-based reason for refusing his request. He believed he had been discriminated against on the grounds of disability and that appropriate positive measures had not been put in place. He sought the reinstatement of a time-off-in-lieu (TOIL) arrangement to avoid financial or leave-related disadvantages.

The Respondent submitted that while it fully supported the Complainant attending his mental health programme, it was standard practice that employees use annual leave, unpaid leave, or flexi leave for such absences. Initially, management proposed a compromise where he could accrue flexi time for part of the hours needed, with the balance taken as annual or unpaid leave. The Complainant refused this proposal and escalated the matter to the WRC. The Respondent noted concerns about his working additional hours weekly and preferred leave to be formally taken. The Regional Manager stated that although he was not covered under the 2024 flexi system, management nonetheless accommodated him informally. She emphasised that the Respondent had offered reasonable accommodation by allowing attendance without objection and by permitting partial flexi leave.

The Adjudicating Officer decided to treat the case as an equality complaint but found that the Complainant failed to establish a prima facie case of discrimination. Although it was agreed that the Complainant had a disability, the evidence did not show that he had been subjected to less favourable treatment compared to a non-disabled comparator. The complaint therefore failed. The Adjudication Officer noted that the dispute centred not on past discrimination but on clarifying the future management of time off for medical treatment. It was recommended that, should similar circumstances arise again, the Complainant should be allowed to use one-third Time Off in Lieu (TOIL), one-third flexi-leave, and one-third annual or unpaid leave at his choice. This recommendation was made specific to the Complainant and not intended as a general precedent

• Employers should carefully distinguish between disability accommodation and standard leave policies. Where an employee discloses a disability-related need for flexibility, management should engage openly, document discussions, and clearly explain any compromises offered to avoid future misunderstandings or legal escalation. It is critical to ensure that any arrangements are consistently applied, are reasonable, and are based on operational needs rather than arbitrary refusals. Employers must avoid any suggestion of less favourable treatment compared to other employees, even inadvertently, as this can give rise to claims under the Employment Equality Acts.
  
• Going forward, employers are advised to create specific, written individual accommodations where necessary, particularly for ongoing medical treatments. Clear communication, transparent decision-making, and regular engagement with the employee are essential. Employers should also retain flexibility where possible and recognise when an industrial relations solution (dialogue and compromise) may prevent an unnecessary dispute.
  

The full case can be found here:
https://www.workplacerelations.ie/en/cases/2025/march/adj-00053066.html