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Disability-Related Constructive Dismissal Claim Considered

This week we look at a recent Workplace Relations Commission (WRC) case in which the Adjudication Officer was required to consider whether or not the Complainant suffered discrimination on grounds of disability. Our Elizabeth Murphy highlights the key points to note in the case of Colin Kerwick v Kevin O’Leary (Clonmel) Limited, ADJ-00042886. The Complainant, Mr. Colin Kerwick, was employed in the valeting and advertisement department of a garage operated by the Respondent, Kevin O’Leary (Clonmel) Limited, since 2019. He resigned three years later following workplace tensions that arose due to an allegedly faulty car servicing carried our on his vehicle by his employer’s garage. Mr. Kerwick claimed that he was discriminated against in the course of his employment on the grounds of his disability. The disability in question was anxiety. He had, however, made no formal disclosure of his disability to the company. The Complainant was one of several employees who chose not to receive any vaccinations during the Covid pandemic. He was open about his unvaccinated status in the workplace, and this gave rise to tension with certain colleagues, especially four mechanics. The Complainant did raise this issue informally with his line manager but made no formal complaints. He alleged that the tension contributed to a heightened sense of anxiety on his part.

On 29 September 2022, Mr Kerwick put his car in for a service with his employer’s garage, paying for it in full. Mr Kerwick received the car with loose wheel nuts which caused a vibration and claimed that it was in a dangerous state to drive. The Complainant believed that this was a malicious act perpetrated by a colleague who disliked him enough to allow him to drive a car in a potentially dangerous condition. The Complainant raised the issue with his line manager who proceeded to confront the mechanics who had worked on the car. The mechanics in question were offended by the allegations.

On 5 October 2022, six days after his car’s servicing, Mr Kerwick did not attend work and was certified for a two-week absence on grounds of work-related stress.The Complainant was contacted by a HR Consultant on the Respondent’s behalf and although that conversation was, by all accounts, positive, Mr Kerwick believed that he would never be able to face the Respondent’s workplace again and tendered his resignation. He filed a complaint with the WRC on 7 October 2022.

Mr Kerwick claimed that his anxiety had increased following the car service. He felt shunned in the workplace although he confirmed that he was being treated in a friendly manner by all employees bar the mechanics. The Complainant informed his line and general managers of the unease he was now feeling in the workplace. The Complainant reported having to ask a manager to clock him in and out so he would not have to come close to the mechanics in the days following the car service. The Complainant confirmed that he informed management of his efforts to avoid the mechanics’ workspace. The managers did not know how to approach the situation at hand, especially given the mechanics’ denial. Management made no attempts to mediate or intervene in any way; a move that was criticised by the Adjudication Officer. The Respondents stated that the Complainant was repeatedly asked if he was okay and if he wanted to proceed with any formal complaints. The Complainant denied that this ever happened. It was confirmed that there were procedures in place for dealing with workplace tensions, but that these could not be utilised given the Complainant’s absence on sick leave.

The Complainant stated that his line manager was aware of his struggles with anxiety and depression and the fact that he had been medicated to deal with these issues for over 10 years. The Complainant accepted that he did not raise his mental health in any meetings with management regarding the mechanics. The topic was only ever discussed in personal conversations.

The Adjudication Officer accepted that the Complainant’s anxiety constituted a disability as defined in the Employment Equality Acts. However, it was noted that the Complainant had not requested "reasonable accommodations" arising from same at any point before leaving the workplace.

The Adjudication Officer found that the Complainant had failed to make out a prima facie case of discrimination on grounds of disability in circumstances where his mental health issues were not disclosed to the employer, and he generally appeared to be a happy employee before the incident with his car. The Adjudication Officer viewed the issue with the car as being a stand-alone matter which triggered the conflict that led to the Complainant’s resignation.

The key point to note is that it is difficult, if not impossible, for employees to succeed with claims relating to alleged discrimination on the ground of disability if they have not notified their employer of the disability in question.

Employers who require advice in relation to employment law issues or who need representation before the WRC or Labour Court can contact our Adrian Twomey.


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