Davy stockbrokers worker who was asked to resign after epilepsy diagnosis gets €20k

WRC adjudicator concluded Davy directly discriminated against Gemma Kiernan on the grounds of disability under the Employment Equality Act. Picture: Eamonn Farrell/RollingNews.ie

Stockbroking firm Davy asked an administrator to consider resigning her position 10 days after she informed her employer she had been diagnosed with epilepsy.

Now, the Workplace Relations Commission (WRC) has ordered J and E Davy, trading as Davy Stockbrokers, to pay €20,000 compensation to Gemma Kiernan.

This follows WRC adjudicator Emile Daly concluding that Davy directly discriminated against Ms Kiernan on the grounds of disability under the Employment Equality Act.

In her findings, Ms Daly concluded she was satisfied Ms Kiernan would not have been asked to consider resigning her position on August 10, 2020, other than this was connected to the confirmation of her epilepsy condition 10 days earlier to her employer.

Ms Daly found if epilepsy was taken out of the narrative, Davy would have permitted Ms Kiernan’s Performance Improvement Plan (PIP) to conclude and following this, she would have either shown improvement or if not then faced disciplinary action.

Ms Daly said the direct discrimination on the grounds of disability arose from Davy failing to permit Ms Kiernan to complete the PIP as would have usually occurred.

The adjudicator said Ms Kiernan “reported being tired during the PIP process and yet no one asked if she wanted to step back from the PIP process until she had come to terms with the diagnosis and had got used to the medication”.

She said the €20,000 award reflected the impact the discrimination had on Ms Kiernan.

Discrimination denied

Davy denied discrimination and said its suggestion that Ms Kiernan resign arose from performance issues in her work that pre-dated her diagnosis with epilepsy and out of a concern that, given her health problems, continuing with the PIP might be more injurious to her than resigning her employment.

Davy’s HR manager told the WRC the suggestion Ms Kiernan consider resignation on August 10, 2020, was that it was in Ms Kiernan’s best interests that she not continue with the work.

Davy argued it was an attempt to provide Ms Kiernan with a choice other than her entering what was an inevitable disciplinary process.

Ms Kiernan — who represented herself at the WRC hearing — started work with Davy as an administrator in the private client department on July 1, 2019, and she passed her six-month probation period in December 2019. Around this time, Ms Kiernan started to feel tired and unwell and she attended her doctor.

On March 30, 2020, Ms Kiernan suffered a seizure at home for which she was hospitalised and on discharge the medical staff in the hospital informed Ms Kiernan she had epilepsy.

On June 17, 2020, Ms Kiernan was placed on a three-month PIP at Davy, which was to improve and support Ms Kiernan’s work performance.

On July 30, 2020, Ms Kiernan forwarded a neurologist opinion to her employer which confirmed a diagnosis of epilepsy.

On August 10, Davy’s HR manager met Ms Kiernan and told her the PIP had not resulted in the improvement that had been hoped.

Ms Kiernan said that, at the meeting, the HR manager suggested she resign her post because she was unable to do the tasks for which she had been employed and her options were either that she resign then before the PIP had concluded or that she await the outcome of the PIP process, after which she was likely to be disciplined.

Ms Kiernan attended her doctor and went on sick leave from August 11 to 20, 2020, and on her return to work Ms Kiernan met with the HR manager and decided to tender her resignation in writing.

Ms Kiernan told the WRC that if she had been allowed time to adjust to the new diagnosis and the impact of the medication, if pressure to perform at work had been lessened even temporarily and if she had not been pressurised to resign, that in time she would have adjusted to the requirements of the post, but no such forbearance was given.

In March 2020, Davy was informed Ms Kiernan had suspected, albeit unconfirmed, epilepsy and its occupational health provider, Medmark, said that after a medical assessment, Ms Kiernan’s health condition would not impact on her ability to perform her work duties.

From this point, Davy determined Ms Kiernan’s health condition was not relevant to her work, because Medmark had so found.

Ms Kiernan’s line manager accepted that by mid-August 2020, she had lost any faith that Ms Kiernan's work would improve and she communicated this to Davy’s HR manager.

The HR manager said Ms Kiernan’s work did not improve during the PIP and this created serious concerns for Davy.

She said numerical accuracy in data inputting was an essential aspect of the complainant’s job and if Ms Kiernan couldn’t do this, she wasn’t suited to the role.