Davy ordered to pay €20,000 compensation for discriminating against employee with epilepsy

Gemma Kiernan was asked to consider resigning from her position days after she informed the firm that she had been diagnosed with epilepsy
Davy ordered to pay €20,000 compensation for discriminating against employee with epilepsy

Gordon Deegan

Stockbroking firm, Davy asked an administrator to consider resigning her position 10 days after she informed her employer that she had been diagnosed with epilepsy, the Workplace Relations Commission (WRC) has heard.

The WRC has since ordered J&E Davy, trading as Davy Stockbrokers, to pay €20,000 compensation to Gemma Kiernan.

WRC Adjudicator Emile Daly concluded Davy directly discriminated against Ms Kiernan on the grounds of disability under the Employment Equality Act.

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

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

Ms Daly stated 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.

Regrettable

Ms Daly stated it is regrettable that, following Ms Kiernan's seizure episode in March 2020, no one asked Ms Kiernan how she was feeling about her work demands or whether the continuation of the PIP post-diagnosis in July 2020 was actually helping her to improve her work.

Ms Daly 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”.

Ms Daly added Davy’s response to Ms Kiernan’s request for time off to attend a neurological appointment "was not immediately positive and supportive, although I accept that the permission was ultimately provided”.

The adjudicator said the €20,000 award reflects the impact the discrimination had on Ms Kiernan.

Ms Daly found that Davy raising work concerns with Ms Kiernan in February and March 2020 was a legitimate action and could not be said to have been connected to Ms Kiernan's disability.

Ms Kiernan - who represented herself at the WRC hearing - started work with Davy as an administrator in the private client department on July 1st, 2019, passing her six-month probation period in December 2019. It was around this time that Ms Kiernan started to feel tired and unwell, leading her to attend her doctor.

On March 30th, 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 that she had epilepsy.

Ms Kiernan was prescribed anti-epileptic medication and she was referred to a neurologist for a specialised assessment.

On June 17th 2020, Ms Kiernan was placed on a three-month PIP at Davy which was to improve and support Ms Kiernan’s work performance and on July 30th, Ms Kiernan forwarded a neurologist opinion to her employer which confirmed a diagnosis of epilepsy.

Davy denied discrimination, stating the suggestion that Ms Kiernan resign arose from performance issues which pre-dated her epilepsy diagnosis and that, out of a concern for her health problems, they believed continuing the PIP might be more injurious to her than resigning.

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