EDA2640

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00048951 (CA-00060190-001)

BACKGROUND:

The Employer appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2021 on 11 February 2025. A Labour Court hearing took place on 11 June 2026.              

The following is the Determination of the Court.

DETRMINATION:

1. This is an appeal by the employer of a Decision of an Adjudication Officer (ADJ-00048951/CA-00060190-001), dated 27 January 2025, made under the Employment Equality Acts, 1998-2021 (the Acts) in a complaint of discrimination on the gender ground by an employee, in which the Adjudication Officer decided that the employee was discriminated against and awarded him €2,000.
2. In this determination, the parties are referred to in the same way as at first instance, so the employee is referred to as “the Complainant” and the charity as “the Respondent”.
3. A hearing of the Court was held on 11 June 2026 in Cork. The Complainant was unaccompanied at the hearing. The Respondent was represented by Ms Sophie Crosbie of Ibec. The Court had the benefit of written submissions from both parties and also heard oral submissions from both parties. The Respondent’s Sector Manager (SM) gave evidence under oath for the Respondent.

Preliminary Applications made by the Respondent

Application for the hearing to be “in private”

4. The Respondent made an application in writing in advance of the hearing, and repeated that application at the hearing, that the hearing be heard in private, the parties be anonymised in the decision and the details of the work location be omitted from any published decision. A similar application made before the Workplace Relations Commission (WRC) was acceded to. The Respondent was concerned that the details of the case would involve discussion of sensitive personal data which could potentially identify service users of the Respondent and also disclose the service’s location which would limit the Respondent’s ability to lead evidence.
5. The Complainant consented to the application at the WRC but objected to the application before this Court when it was submitted in writing, albeit he did not object to service users not being identified. The Complainant wished the hearing to progress in public and the parties to be identified.
6. Hearings of the Labour Court are held in public unless the Court is satisfied there are special circumstances which demonstrate that the hearing should be heard otherwise than in public. There is no specific jurisdiction vested in the Labour Court regarding the anonymisation of parties in determinations save that the practice is that where hearings are heard otherwise than in public, determinations arising from those hearings do not generally include the names of the parties.
7. The Court has regard to the general principle that justice should be administered in public, which has been put on a statutory footing in respect of matters heard before the Labour Court, and confirmed in Rule 65 of the Labour Court Rules 2024. In order to accede to such an application, the Court must be satisfied that there are special circumstances that justify holding the hearing otherwise than in public. In this case, it was clear to the Court that the evidence would involve discussion of specific details of individual service users with intellectual disabilities who were not party to the proceedings and were entitled to not have their personal information disclosed in a public hearing. The Court therefore concluded that there were special circumstances which merited conducting the hearing otherwise than in public. The hearing proceeded on that basis and neither the service users nor service location will be identified in the determination. The parties will not be named in the determination to prevent identification of the service users.
8. In order to protect the anonymity of the service users the female supported person, for whom the female member of staff (the FMS) was providing service, will be identified in this determination as F1 and the male supported person, for whom the Complainant and another staff member were assigned on a 2:1 ratio, will be identified as M1. Another male supported person will be referred to as M2.

Application for the submission of documents

9. The Respondent made an application in writing in advance of the hearing, and repeated the application at the hearing, that it be permitted to introduce documents which were not included in its original submissions. These included documents which were better quality copies of documents already submitted, which were accepted by the Court. The remaining application concerned the minutes of a meeting at which the disputed (allegedly discriminatory) instruction previously conveyed was purportedly removed. The Complainant objected, in writing, to the submission of the document and identified a number of errors or inconsistencies relating to it. In circumstances where the author of the document was not in attendance to verify it the Court declined to admit the document. The Complainant had, in advance of the hearing, withdrawn his objection on the basis that he would submit documents he had not previously submitted but with equivalent issues arising regarding their authentication the Court also declined to admit the Complainant’s additional documents.

Summary of the Complainant’s Submission

10. The Complainant made written submissions but declined to give evidence to the Court.
11. The Complainant set out that he commenced employment with the Respondent in April 2002 and, since December 2002, had worked solely in Day Services in multiple locations and in a variety of frontline roles. The Complainant ceased employment with the Respondent in early 2025.
12. The Complainant set out a historical background including inter alia interpersonal issues he had with a particular female member of staff (the FMS) and set out the steps he took to avoid interacting with her until April 2023 when the FMS joined the team in the location where the Complainant was working.
13. The issue, the subject of the within complaint, commenced in or around 3pm on 24 May 2023 when a message was sent by the FMS to a WhatsApp group comprising four senior instructors (of which the Complainant was one) in respect of F1. [The Complainant referred to the messages as having been sent on 25 May when on the face of the messages appended they are dated 24 May 2023.] The context of the messages were that F1 had demonstrated some difficult behaviour triggered by encountering male staff and the instructor with responsibility for her (the FMS) advised that F1 (and her support staff) would need exclusive use of the kitchen area from 10.45am and 12 noon, and from 1.30pm to 2.30pm on Wednesdays and Thursday with effect from Thursday 26 May 2023. The Complainant objected on the basis that those times included the times M1 had his lunch and the staff supporting M1 needed access to the kitchen during that time. The Complainant proposed that F1 use the sitting room at that time, but it was pointed out to the Complainant that F1 would still be able to see and hear male staff from the sitting room which could still trigger F1’s behaviour. The Complainant suggested that F1’s schedule needed to be changed rather than changing other people’s schedules. The Complainant said that the time the kitchen would be available (between 12 noon and 1.30pm) was not suitable for M1’s needs given his routine and also that the Complainant had used F1’s kitchen that day and F1 did not appear affected by that in circumstances where he had previously engaged with her in the course of his employment. The Complainant agreed to speak with the male colleague working with him, with M1, to minimise access to the kitchen by having the colleague prepare his own lunch at the same time as he prepared M1’s lunch.
14. On 26 May 2023, the Complainant attended a team meeting chaired by SM who was acting as Day Service Manager at that time, in addition to her substantive role. The Complainant said the issue of restricting access for male staff to the shared kitchen to accommodate F1 was raised, without reference to the text exchange of the previous day, and to his surprise SM sanctioned the arrangement whereby access to the kitchen used by F1 would be restricted without having had regard to the possibility of alternative arrangements which would not negatively impact other staff. The Complainant said that the minutes of the meeting did not reflect the gender bias of the arrangement.
15. The Complainant said that he attempted to speak with SM in person in the following weeks about his issues with the agreed actions from the meeting of 26 May 2023, including that they did not reflect his contribution to the discussion. The Complainant said that he sent emails to SM to arrange this meeting, but those emails were not provided to the Court. This specific meeting was not forthcoming, albeit the Complainant did meet with SM on 26 May 2023, immediately after the team meeting, in relation to another matter.
16. On 13 September 2023 the Complainant sent an email to SM setting out his belief that he had been discriminated against in terms of the instruction not to use the kitchen area as he was the only permanent male member of staff affected by the instruction. In questioning from the Court, the Complainant said that his male colleague (supporting M1) would also be affected but the Complainant noted that he regularly assigned him to other duties so the Complainant was solely responsible for M1 for much of the time. The Complainant viewed SM’s response as dismissive, including directing him to raise a grievance. The Complainant did not raise a grievance as he knew it would take time and the “window of the WRC would have closed”. The Complainant said he submitted a complaint to the WRC on 23 November 2023, in the absence of any meaningful engagement from management. In answer to a question from the Court, the Complainant confirmed that he was familiar with the Respondent’s staff handbook and grievance procedure where he was employed by the Respondent for 23 years and had been a union representative.
17. The Complainant made submissions regarding events in the Respondent organisation post the submission of his complaint to the WRC, which are not considered as they occur outside the cognisable period for the complaint.
18. The Complainant disputed aspects of the Respondent’s submission in asserting that the new Day Service Manager (the DSM) commenced her role in September 2023 and not 10 July 2023 as submitted by the Respondent. The Complainant based this assertion on meeting minutes from the meeting of 26 May 2023 in which it was reflected that the DSM had broken her wrist and would not therefore be starting work until September. The Complainant accepted, after cross-examining SM, the DSM’s start date was 10 July 2023.
19. The Complainant maintained that, in a meeting in September 2023, the new section manager read out the minutes from the 26 May 2023 meeting and that a female member of staff said, “that’s just male staff”. The Complainant disputed that the restriction on access was gender neutral and also disputed that it was lifted in a meeting of 13 October 2023. In answer to a question from the Court the Complainant said that it went beyond October 2023 and only stopped being an issue when F1 stopped attending the service, he thought sometime in 2024.
20. The Complainant said that the effect of the instruction, which he alleged constituted discriminatory treatment, was that he suffered stress in having to decide whether or not “it was safe for me to enter an area” in his workplace for fear of “what staff in that area might say to me then or at the next staff meeting”. He said he could not do his job without worrying he would be kicked out of his workplace so found himself adjusting his work including “squeezing in” M1’s lunch so he would not have to get into that position. He said that it “ate me up inside”. Other impacts identified occurred outside the cognisable period.
21. The Complainant described an Irish societal stereotype whereby in a man’s world a man could not claim discrimination but that he worked in a female dominated industry where gender-based discrimination against men was a real possibility. In this case the Complainant said that a female section manager restricted male staff from accessing an area in the workplace and that this restriction did not apply to female members of staff.
22. The Complainant agreed with the principle of removing triggers and creating a peaceful environment for service users but felt there were other ways this could have been achieved including changing the service user’s (F1’s) routine. The Complainant accepted that his supported person (M1) got his lunch notwithstanding the Complainant’s restricted access to the kitchen as it was the Complainant’s job to make it happen but that it was very rushed. The Complainant said that he had a daily routine of eating his lunch with his supported person (M1) in M1’s room but that where M1 indicated he did not want anyone in his room the Complainant ate lunch in the adjacent lobby. The Complainant accepted that one could not enter another supported person’s (M2’s) area while the supported person was there.

Summary of the Respondent’s Submission

23. The Complainant was a senior instructor in Day Services with the Respondent at the time of the alleged discrimination, having commenced employment on 7 April 2002. From 4 May 2023 to 10 July 2023, the two up line manager, SM, assumed responsibility for managing the team, of which the Complainant was part, pending a permanent replacement, which permanent replacement (the DSM) commenced in the role on 10 July 2023.
24. In or around 17 May 2023, a protocol document was completed by F1’s residential staff team in consultation with the day service team in respect of F1. This protocol document detailed high levels of risk of potential inappropriate behaviour around males by F1 and listed control measures to be taken to reduce the risk of inappropriate behaviour by F1.
25. On 26 May 2023, a regular staff meeting was held, chaired by SM and attended by the Complainant, where a big change in F1’s behaviour was noted. It was agreed and recorded in that meeting that all staff, other than those working directly with F1, would stay out of F1’s area as a temporary measure until things settled. The Respondent’s position is that this was a team decision and had person supported care as its primary focal point. In making the decision the Respondent was cognisant of its duty of care to both staff, and the person supported, to avoid unnecessary escalation of behaviour. The decision was one of multiple decisions documented at that meeting and fell into the realm of documented work instructions for the care of individual persons supported at that particular time.
26. The Complainant met with SM immediately following the staff meeting of 26 May 2023 and spoke about an interpersonal issue with the FMS. The Complainant did not at that time raise any concerns with regard to the work instruction agreed at the team meeting, nor his perceived exclusion at that time. No mention of alleged discrimination was raised by the Complainant until 13 September 2023 when he sent an email to SM.
27. The Complainant’s preferred solution to the issue with accessing the kitchen used by F1, which was to change F1’s routine, was not acceptable to the Respondent as it was contrary to the best interests of the supported person.
28. The Respondent’s position is that the Complainant was not discriminated against. The instruction that staff (other than those working with F1) were to stay out of F1’s area was a gender-neutral instruction which was temporary in nature arising from an assessment of F1’s needs in the context of a significant change in her behaviour in particular circumstances. Other male and female staff members who did not work with F1 were also being asked to stay out of the shared kitchen area when F1 was using it. The kitchen area to which access was restricted was not a staff canteen, rather it was a facility for use for the purposes of care of persons supported, and there were two alternatives in close proximity available to the Complainant and other staff to use, including one kitchen used by staff to store their lunches. Staff were simply being asked to stay out of one shared kitchen temporarily when the person supported was present in that facility.
29. The Respondent contends that no breach of section 8 of the Acts has been identified by the Complainant. The Respondent disputes that access to a shared kitchen for the purpose of providing meals to a person supported as part of that employee’s day to day duties is a “condition of employment” as set out in section 8 of the Acts. The Respondent notes that the Complainant disagreeing with the instruction does not make it inappropriate nor provide prima facie evidence of unlawful discrimination.
30. Further, the Respondent notes that it has a duty to protect employees and prevent unlawful harassment. Given the person supported (F1) had documented potential for inappropriate behaviour around males, whether staff or members of the public, there was an increased risk of unlawful harassment of male staff members by F1. In taking the measures that it did the Respondent was acting in accordance with its statutory duties to prevent unlawful sexual harassment. The Respondent submitted that if it had not acted in the manner it did, and had F1 harassed the Complainant, the Complainant could potentially have a claim for unlawful discrimination in respect of which the Respondent would be forced to defend in reliance on section 14A(2) of the Acts.
31. Insofar as indirect discrimination is relied upon by the Complainant the Respondent submits that as a work instruction is neither “a requirement, practice or otherwise” nor is it “a term and condition of employment” it is not within the ambit of section 22(1) of the Acts. The Respondent submits that for the Court to find that the circumstances of this case amount to indirect discrimination would be to “unnecessarily trivialise what is an important concept for equal pay and equal treatment for men and women in their employment”. The Respondent submits that the indirect discrimination measure (set out in section 22 of the Acts) is designed to protect men and women from long term systematic and structural career disadvantage arising from gender discrimination and it is not designed to address short term individual grievances about the working environment.
32. The instruction, restricting access to a kitchen during specified periods, was introduced to support the service user having regard to a particular need and to ensure the safety and wellbeing of staff who did not work with F1 where there was a heightened risk of inappropriate sexualised behaviour from the person supported, whose behaviour had deteriorated in the weeks before the instruction was issued.
33. Without prejudice to the Respondent’s submission that the instruction did not constitute discrimination, the Respondent submitted that if the Court found it did it was justified on the basis that it was a decision which had person supported care as its primary focal point, was a proportionate response to a service need and was appropriate and necessary in all the circumstances.

Summary of the Evidence of the Respondent

Evidence of SM, Sector Manager of the Respondent

34. SM (the witness) gave evidence under oath. At the material time, SM’s substantive role was that of Sector Manager but she was, on an interim basis, also responsible for running the Day Services and was the person in charge under the Health Act 2007 for three designated centres across four buildings. Recruitment was in process for the latter two roles. The function of the Respondent was to support people with intellectual disabilities and autism, providing respite and adult day and residential services. The witness gave evidence that support given has to be person centred and can include requirements that the person providing support not wear their hair a particular way, avoid crossing their legs or not carry anything, to avoid dysregulation in the supported person.
35. At the staff meeting on 26 May 2023 the witness said that what was addressed were decisions to respond to dynamic needs. The witness referred to the Disability Distress Assessment Tool undertaken for F1, which was described as a tool designed to support staff identify non-verbal cues. F1 had a residential key worker and changes in routine had been identified as a distress factor for F1. A protocol for F1’s interaction with men had been prepared on 17 May 2023 which identified risks regarding males who were both familiar and unfamiliar to F1. The background giving rise to the protocol was an incident on 16 May where F1 exposed herself to a staff member and attempted to touch male contractors. At the time there were four recorded incidents in May and there were two further between 17 and 26 May 2023. As F1’s behaviour was escalating the first step was to identify if there were any underlying medical issues which could explain the change in behaviour. The witness gave evidence of reactive strategies deployed when F1 presented with intense periods of dysregulation including use of weighted blankets, calm voices and distraction including going for a walk, with use of anti-psychotic medication when the need arose. Other behaviours were evidenced including behaviours which posed a physical risk to F1’s support staff. The strategy of the Respondent in addressing dysregulation is to provide a safe place, routine and to put in place strategies including adaptations to the workplace. The witness gave evidence about another service user (M2)(referenced by the Complainant) where staff (including the Complainant) would not enter his kitchen area, which restriction was accepted by the Complainant.
36. One of the distress factors identified for F1 was a change in routine and the key factor to which the Respondent had regard was in lowering distress factors and/or regulating behaviours. The witness noted that there was no disruption to M1’s routine by the restriction in access to the kitchen as he had two staff with him (including the Complainant) so one staff member could prepare M1’s lunch in a different location or facilities could be provided for lunch to be prepared in or around his rooms. The witness said that if the Complainant loaned out the second member of staff that that second staff member could also be returned if needed.
37. SM gave evidence that the first time she saw the WhatsApp messages of 24 May 2023 was at the WRC hearing. She said that, at the time the decision was taken, she was not aware that there had been a disagreement between the FMS and the Complainant about the issue. She said that WhatsApp was not a recognised method of communication in the Respondent and that when its usage came to light in early 2024 the Respondent directed cessation of its usage with effect from 12 March 2024.
38. In respect of the meeting of 26 May 2023 the witness said it was a standard monthly meeting and the FMS was the notetaker. She said what was discussed about F1 was F1’s change in presentation and that she needed a low arousal environment. The witness said, in her professional opinion, the best measure was for F1 to only work with her team and no-one else. The witness said that the instruction was gender neutral and applied to all staff not supporting F1 and was based on the Respondent’s duty of care to persons supported and to staff. The witness does not recall any disagreement with the proposal in the meeting but said there was discussion around the other two kitchens available for use and there was also a suggestion that equipment (microwave/fridge) could have been bought for the lobby area adjacent to M1’s rooms. The witness said she would have expected the Complainant to follow through on the equipment purchase if they wanted to do it. The witness said there were three kitchens available to staff and the instruction only restricted staff access to one of them. One was available at all times and the other was available when M2 was not there, which included Wednesday. There were two alternative kitchens available to the Complainant on Thursday and one on Wednesday. The person supported by the Complainant (M1) was on a 2:1 staff ratio because of his complex presentation. The witness identified that M1 brought his lunch from home and that the staff plate it and serve it to M1 in his room. The witness gave evidence that M1 did not go into the kitchen at all and the instruction had no effect on him.
39. SM’s evidence was that the instruction to stay out of F1’s kitchen while F1 was there was given to all staff and applied at all times F1 was in the building. The witness said that 59 shifts were rostered during the period in question and that seven women and two men (including the Complainant) working at the time were affected by the instruction. The witness said that the Complainant was only affected for a maximum period of 28 days. The witness said that the industry in which the Respondent operates is complex and adaptations have to be made in the context of the Respondent’s duty of care to the supported person and staff. In F1’s case there were specific risks to staff identified which were avoided by issuing the instruction.
40. SM said that she was informed by the newly appointed Day Service Manager (the DSM) that the instruction was lifted in a meeting on 13 October 2023. The DSM had started work in July 2023, and not September 2023, although the later start had been envisaged when the DSM broke her wrist.
41. SM said that directly after the team meeting on 26 May 2023 she met the Complainant in a scheduled meeting. The meeting addressed concerns the Complainant had regarding issues with his colleague (the FMS), raised with the previous manager, in the context of the Complainant seeking to return to his previous working arrangements of five days per week supporting M2 to avoid overlap with the FMS. The witness explained that she told the Complainant this was not possible because of changed requirements in supporting M2. The witness said that the Complainant did not mention the work instruction regarding F1, or the WhatsApp exchange, in the meeting with her after the team meeting. The Complainant had forwarded concerns regarding the FMS (initially raised by email in April 2023) and the witness advised him of the grievance procedure but said the Complainant had not wanted to go that route. The witness said that she requested the DSM meet with the Complainant, after an August 2023 email, and she understood that they had met. The witness said the first time the Complainant raised the issue of the May 2023 instruction with her was in the email of 13 September 2023.
42. The witness said that the Complainant last worked with F1 in 2019 and that a person’s presentation changes over time as does the guidance and professional knowledge needed to support that person. The witness did not consider that the Complainant’s experience of working with F1 in 2019 would equip him to work with her in 2023.
43. The witness said that there was a positive impact of the instruction on F1, where there was only one incident in June, where she did not want to come to her residence, six in July of which four had a medical basis, two in August when F1’s parents were away (which involved a change to her routine), one in September and none in October. The witness said a holistic approach to F1 in respect of her work (Day Service) and home service had a positive impact.
44. The witness said that the instruction she gave was to support F1 and staff and that it was given to all staff. She said that a finding that giving a work instruction could be indirectly discriminatory would be challenging for the Respondent as it could set a precedent that would significantly impede safe service.
45. In cross-examination it was put to the witness that not all the incidents with F1 involved male staff identifying that a bottle throwing incident in May 2023 was at a female member of staff. The witness accepted this and said this was why the instruction was to all staff. The witness said the gender split of employees in the particular service was seven men and fourteen women.
46. In answer to questions from the Court the witness said that the average staff ratio on Wednesday and Thursday rosters is 30% men and 70% women, and at the meeting in which the decision was taken there were four men and eight women and, scheduled to work on that day were five men and nine women. The witness also confirmed that there were occasions where restrictions were imposed on women working in certain sections or with certain supported persons and vice versa depending on the needs of the supported person.

Relevant Legislation

47. Section 8(1) of the Acts provides that in relation to:
    • (a) access to employment,
    • (b) conditions of employment,
    • (c) training or experience for or in relation to employment,
    • (d) promotion or re-grading, or
    • (e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

48. Section 6(1) of the Acts provides that:

“discrimination shall be taken to occur where-

• (a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”)…

49. Section 6(2)(a) provides that: “As between any 2 persons, the discriminatory ground (and the description of those grounds for the purposes of the Act) are – that one is a woman and the other is a man (in this Act referred to as “the gender ground”.
50. Section 22 of the Acts provides that:

“(1)(a) indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.

(b) where paragraph (a) applies, the employer shall be treated for the purposes of this Act, as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

51. Section 77(6A) provides that:

“For the purposes of this section-

(a) discrimination or victimisation occurs-

(i) if the act constituting it extends over a period, at the end of the period,

(ii) if it arises by virtue of a term in the contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operates over a period, throughout the period”.

Burden of Proof

52. Section 85A(i) of the Acts deals with the burden of proof and states that: -

"Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove to the contrary."

53. In Southern Health Board v Teresa Mitchell [2001] ELR 201, the Labour Court set out the evidential burden which a complainant must discharge before it can accept that a prima facie case of discrimination has been established:

"The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination."

54. In Minaguchi v Wineport Lakeshore Restaurant DEC-E/2002/20, the primary facts which a complainant must prove on the balance of probabilities were identified by the Equality Officer as follows:

• "That s/he is covered by the relevant discriminatory ground(s);
• That s/he has been subjected to specific treatments; and
• That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated."

55. In Southern Health Board v Mitchell, the Labour Court went on to say that: -

"It is only if those primary facts are regarded…as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."

56. In Melbury Developments v Arturs Valpeters EDA/0917 the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant:

"must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn (…)the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule."

57. As per the Labour Court decision in HSE North Eastern Area v Sheridan EDA0820, whether a complainant has shifted the burden of proof necessitates the following three-step evaluation:

"First, the complainant must prove the primary facts upon which he or she relies in alleging discrimination.

Second, the Court must evaluate those facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

Third, if the complainant fails at stage 1 or 2, he or she cannot succeed. However, if the complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the onus shifts to the respondent to prove, on the balance of probabilities, that there is no discrimination."

Deliberations

58. The burden of proof in a claim of discrimination under the Acts requires a complainant to establish sufficient facts from which discrimination can be inferred. This includes proving, in this case, that the Complainant was a man who was subject to specific treatment(s) and that this treatment was less favourable than was or would be afforded to a woman. If the Complainant proves those primary facts on which he relies in alleging discrimination, then the Court must evaluate those facts and satisfy itself that they are of sufficient significance in the context of the case to raise a presumption of discrimination. Only if the Court concludes that the facts relied on are of sufficient significance does the onus shift to the Respondent to prove, on the balance of probabilities that there is no discrimination.
59. It was accepted by the parties, and the Court, that at the material time the Complainant was an employee and the Respondent his employer, within the definitions set out in the Acts. It was further accepted by the parties and by the Court that the Complainant was a man. The Complainant did not identify a woman as a comparator against whom he alleged he was less favourably treated but maintained that “no female member of staff was equally subject to the work instruction and impacted in the same manner” so his comparators were “all female members of staff”.
60. The Complainant alleged, in his written submissions, that there had been issues throughout his career where gender appeared to be an issue for him professionally. He referenced some historical factors, in terms of an objection to wording in the Respondent’s Personal & Intimate Care Policy, in the context of a recruitment process, and where he maintains a female colleague threatened to file a complaint against him for sexual harassment if he initiated disciplinary proceedings against her. None of these were relevant to the within proceedings. The Complainant made an assertion that the generally held view in Irish society was that men could not be discriminated against in the workplace but did not provide any basis or statistics to support his assertion.
61. The Complainant alleges that a direction given during a team meeting on 26 May 2023 was discriminatory on gender grounds. He appears to contend for both direct discrimination and/or indirect discrimination in respect of the same matters. His position is that a gender specific direction was given that employees who were men were directed to stay out of a kitchen area used by F1 when F1 was there. He did not provide any evidence to support that sequence of events. The Complainant provided WhatsApp messages which said that F1 “needs to have the kitchen area to herself between 10.45 and 12 and 1.30 to 2.30 on Wednesday and Thursday”. It was not disputed that this message was not seen by the Respondent and that the Complainant did not discuss the WhatsApp messages at the team meeting the following day. The Complainant maintains that at the team meeting an instruction was given that male employees were not to access F1’s kitchen area while she was there. SM gave sworn evidence that her instruction was given on a gender-neutral basis requiring all staff, other than those supporting F1, to stay out of F1’s kitchen area while she was there. The minutes of the meeting (exhibited by both parties) accorded with SM’s version of events (albeit the Complainant disputed the gender-neutral language used in the minutes). The decision to restrict access was based on an assessment undertaken and a protocol developed in the context of F1 presenting with challenging behaviours.
62. The Court accepts the sworn evidence of SM, over the submission of the Complainant, that the instruction was given on a gender-neutral basis requiring all staff to stay out of F1’s area while she was there. Where the direction was given to all staff, not just men, and where it affected men and women alike there can be no issue of direct gender-based discrimination arising.
63. Even if the instruction was given and applied only to men, which is not accepted by the Court, the Complainant has not provided any evidence to support his claim that he was less favourably treated than a woman in respect of his conditions of employment. The instruction which restricted access to an area was imposed in recognition of the care needs of a service user, which care needs appeared to be understood and accepted by the Complainant. There were similar restrictions in respect of other service users where, for example, it was recognised that M2 did not want people in his room if they were not his support workers. The Complainant had no difficulty with that restriction. In the case of F1 the Complainant objected that it impacted on him. The effect, at its height, was that the preparation of M1’s lunch was rushed. There were alternatives if the Complainant did not wish to be inconvenienced, which were particularly applicable because M1 was supported on a 2:1 ratio. The Complainant need not have been impacted at all, even if the direction was gendered, because there was a second member of staff who could have attended to M1’s lunch needs either by using F1’s kitchen at a particular time or using another kitchen. That the Complainant decided, for his own reasons, to operate without the second staff member was a matter for him and clearly not imposed or directed by the Respondent. M1, as the service user, was not impacted by the restriction. Therefore, even if the instruction was gendered, which the Court does not accept, the impact on the Complainant was minimal and could be completely avoided by him.
64. Further, the Court does not accept that the availability of a kitchen for use by the Complainant to do his job forms part of the Complainant's conditions of employment. The kitchen to which access was restricted was not a staff room or facility provided for the benefit or enjoyment of staff. It was not, in the Court’s view, a condition of employment enjoyed by the Complainant. Rather, it was a tool to help the Complainant and other staff perform their jobs. There were other tools available to the Complainant. Even where the Complainant used the kitchen for preparation of his own lunch the availability of a particular kitchen, as opposed to a place to which he had access, does not form part of his conditions of employment. Therefore, even if the instruction was issued on a gender basis (which the Court does not accept), there was no less favourable treatment in respect of the Complainant’s conditions of employment.
65. It is accepted by the Court that, in the context of the Respondent’s business, there will be times where decisions must be made to meet the support needs of service users and times where the service user’s needs outweigh any minor inconvenience to an employee. The imposition of certain restrictions, or giving of work-related instructions, having regard to what is appropriate and necessary to meet the support needs of a vulnerable adult is something the Respondent should be able to do without having to second guess the impact on staff. That is not to say that where a member of staff identifies an issue arising in respect of any such instruction it may be incumbent on the Respondent to balance those considerations, in the interest of harmonious working relations, but having particular regard to the needs of the service users. The Court also recognises, in this case, that the Respondent had a duty of care to protect staff from a risk of inappropriate behaviour from F1 where that risk had been identified and documented. Whether the potentially affected staff were concerned about that risk did not affect the Respondent’s duty to protect them from the risk.
66. In this case the Court notes that no concerns were raised regarding the instruction and no issue alleging discriminatory treatment was raised by the Complainant for almost six months and only then in the context of the closing of the “window” for presenting a WRC complaint. In the context of allegations of discrimination, that an employee is mildly inconvenienced by a support-based decision does not, on its face, ground a claim for discrimination where there is no impact on the person’s conditions of employment.
67. In addition, or in the alternative, the Complainant alleges indirect discrimination where he maintains that if the instruction given was gender neutral it had a greater effect on him than on any woman on the staff and was, therefore, indirectly discriminatory. The evidence given was that there was a ratio of women to men of approximately 2:1 on the staff of the Day Service. Anyone using F1’s kitchen was affected and, on the Complainant’s own account, the second member of staff rostered with M1 was not always male. The sworn evidence of SM identified that seven women and two men were affected by the restriction of access to the kitchen, so women were more likely to be affected than men, contrary to the claim made by the Complainant.
68. The Court did not hear evidence from the Complainant, despite the Complainant being afforded the opportunity to give evidence. The Complainant’s position therefore was that he was the only male affected by what he claimed was a gender-based instruction regarding the use of the kitchen. The Court is satisfied, from the sworn evidence it did hear, and the documentary evidence relied on by both parties, that the instruction was gender neutral. No evidence was provided by the Complainant from which discrimination can be inferred, even if regard is not had to the evidence of the Respondent. The Complainant did not identify any less favourable treatment in respect of his conditions of employment, arising from the instruction given.
69. Considering the above facts, the Court does not consider that the Complainant discharged his burden of proof to show that any gender-based restriction in terms of the access to the kitchen was implemented as alleged or at all. The Court further concludes that there was no discrimination in respect of the Complainant’s conditions of employment, whether the instruction was gender based or not. The Court does not consider that the Complainant discharged his burden of proof in terms of showing that, if the instruction was not gender-based, and the Court concludes it was not, that it was indirectly discriminatory of him in circumstances where more women than men were likely to be affected and where there was no evidence to show any discrimination in respect of the Complainant’s conditions of employment.
70. Finally, while the burden is not deemed by the Court to pass to the Respondent in this case, the Court has considered whether the Respondent could meet its burden if it had been required to do so. In this case the Respondent’s professional case workers assigned to support an individual identified an issue regarding that individual’s escalating behaviour. Having ruled out other causes the Respondent concluded that the best way to manage the individual’s dysregulation and provide a safe and routine environment for her was to ensure that only she and her support workers would be in her particular space. This was a mechanism which was applied in other circumstances for other service users without issue. It was considered temporary in nature, but it was maintained for at least six months (longer on the Complainant’s account). Evidence was given that the restriction on access had the desired improved effect on the service user’s behaviour. There were other mechanisms by which the service user’s behaviour could have been modified including the use of anti-psychotic medication. It seems to the Court that the mechanism chosen was the least intrusive for the service user and had the least impact on other service users. The impact on the Complainant was minor and could have been mitigated entirely by him had he chosen to do so. In the circumstances, the Court considers that the instruction which restricted access to F1’s kitchen (while not discriminatory), was in any event objectively justified by a legitimate aim of the Respondent (being the support of service users) and the means chosen were appropriate and necessary and the least intrusive of the options available.

Determination

71. The Court determines that the Complainant has not discharged his burden in establishing a prima facie case of direct or indirect discrimination on the gender ground.
72. The Court sets aside the decision of the Adjudication Officer, dated 27 January 2025, bearing the reference numbers ADJ-00048951 and CA-00060190-001.
73. The Court so determines.

	Signed on behalf of the Labour Court
	Niamh McGowan
AR	______________________
23/07/2023	Deputy Chairman

NOTE

Enquiries concerning this Determination should be in writing and addressed to Mr Aidan Ralph, Court Secretary.