Davy must pay €20,000 for resignation ultimatum 10 days after epilepsy diagnosis

Davy Stockbrokers has been ordered to pay an administrator €20,000 in compensation for discriminating against her by suggesting she resign 10 days after she was diagnosed with epilepsy. 

 

The Workplace Relations Commission found Gemma Kiernan was given an “ultimatum” by the firm’s HR manager to “leave voluntarily or face disciplinary action” rather than being allowed to complete a personal improvement plan – and that this was “likely” to be directly linked with her diagnosis. 

 

Ms Kiernan had complained against J&E Davy Ltd, trading as Davy Stockbrokers, under the Equal Status Act, alleging she was discriminated against directly because of her disability, was given no reasonable accommodation, and was victimised and harassed too. 

 

Ms Kiernan said she had been feeling “tired and unwell” as early as December 2019, when her GP referred her for blood tests. These turned up nothing at the time and she had attempted to continue with her life and her work, the commission was told. 

 

Her line manager raised performance issues with her in February 2020. 

 

The commission heard that on March 30th, 2020, shortly after staff were sent to work from home because of the pandemic, Ms Kiernan suffered a seizure at home and had to be taken to hospital. On her discharge, medics told her she had epilepsy and she was prescribed anti-epileptic medicine and referred to a neurologist for a specialist assessment, she said. 

 

After phoning her line manager to explain what happened, she went on sick leave until early May, when Davy sent her to an occupational health assessor and asked it whether her seizure could explain her poor work performance. In a report issued on June 6th, 2020, the contractor, Medmark, said it could not. 

 

Ms Kiernan argued that from that point on, Davy “sought to diminish or ignore” her illness. She was placed on a performance improvement plan on June 17th, which was set to run until mid-September. 

 

After a consultation, the neurologist confirmed her diagnosis, and she sent it to her employer on July 31st. Ten days later, Davy’s HR manager met Ms Kiernan and told her the performance improvement plan had not brought the improvement hoped. 

 

Ms Kiernan said the manager suggested she resign because she was “unable to do the tasks for which she had been employed”. 

 

Ultimatum 

She was given two options: either to resign before the end of the improvement plan and receive two months’ notice pay, or wait until the end of the process and face a likely disciplinary process. 

 

Ms Kiernan said it was clear to her she was “no longer wanted” and gave her resignation in writing in late August. 

 

It was Davy’s position that the diagnosis remained unconfirmed at the time of her assessment by Medmark, which found it was not relevant to her work. 

 

The line manager said Ms Kiernan’s first monthly improvement plan meeting showed improvement, but there were “significant failures” highlighted. The line manager denied being “unsupportive”. 

 

However, she accepted that, by the middle of August 2020, she had “lost any faith that [Ms Kiernan’s] work would improve” and said so to Davy’s HR manager. 

 

Ibec employer relations executive Niamh Ní Cheallaigh, who appeared for Davy, argued Ms Kiernan had failed to establish a prima facie case of discrimination. 

 

In her decision, adjudicating officer Emile Daly wrote that Ms Kiernan had failed to establish harassment or victimisation by Davy as a result of her discrimination. 

 

Diagnosis 

There was “no doubt” Ms Kiernan’s line manager had identified work performance issues, she wrote, and raising these with her in February and March 2020 was a “legitimate action” unconnected with her disability. 

 

But, she said, when Davy pressed on with that performance improvement plan after her confirmed epilepsy diagnosis at the end of July, its dealings with her “took an unusual turn”. 

 

“No explanation has been provided by the respondent why the performance improvement plan was not permitted to take its ordinary course,” Ms Daly wrote, and said it was “evidentially significant” that the intervention by the HR manager came just ten days after her diagnosis. 

 

She added that the line manager’s view that Ms Kiernan would not improve was a “pre-judgment” which was “not adequately explained”. 

 

She said it was likely the epilepsy diagnosis “significantly contributed” to the HR manager’s view that it would be in Ms Kiernan’s “best interests” to resign instead of finishing out the improvement plan. 

 

“[Davy] gave the complainant an ultimatum of two options: leave voluntarily or face disciplinary action and both constituted a detriment. I am satisfied that but for the complainant’s medical condition, the [personal improvement plan] would have continued.” 

 

The €20,000 award took into account Ms Kiernan’s difficulty in finding new work because her employment ended during lockdown, she wrote, adding that she also hoped it would “deter this conduct being repeated”. 

 

The Irish Times