EDA261

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00049555 (CA-00060786-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 04 November 2024. Labour Court hearings took place on 08 July 2025.

The following is the Determination of the Court:

DETERMINATION:

1. Background to the Appeal

This is an appeal by Judyta Zielinska of a decision of an Adjudicator Officer (ADJ-00049555, dated 4 October 2024) under the Employment Equality Acts 1998 – 2015 (“the Acts”). The Adjudicator found that Judyta Zielinska had not made out a prima facie case of discrimination on the ground of religion and determined that the complaint was not well founded.

Ms Zielinska appealed that decision to the Labour Court on 4 November 2024. The hearing was conducted in Wexford. Both parties provided written submissions to the Court in advance of the hearing. The Court heard evidence from Judyta Zielinska, her husband and a former colleague in support of her case. The Director of Nursing gave evidence on behalf of the Respondent. The parties lodged closing statements after the hearing.

In this determination, the parties are given the same designation as at the WRC hearing. Judyta Zielinska is referred to as “the Complainant” and the Health Service Executive as “the Respondent.”

2. Background to Complaint

The Complainant is a Jehovah’s Witness. She is employed as a multi-task assistant with Wexford Residential Intellectual Disabilities Services since 2015 and submits that she was subject to discrimination, indirect discrimination and victimisation on the ground of her religion in her workplace.

The Respondent refutes those allegations and submits that the Complainant has not established facts from which a prima facie case of discrimination can be established.

As the complaint was lodged to the Workplace Relations Commission on 2 January 2024, the relevant period for consideration by the Court, having regard to the statutory time limits, is the period from 3 July 2023 to 2 January 2024.

3. Summary of Complainant’s Case

The Complainant is a Jehovah’s Witness and informed her employer from the outset of her employment that she was raised in a Jehovah’s Witness family and did not participate in any religious observances not in line with her religious faith. The Complainant worked in various care facilities over a period of eight years. She always discussed her religious beliefs and background at staff support meetings and was always assured that her religious background was respected.

The Complainant was never under any obligations to attend mass against her beliefs. It was an express and/or an implied term of the Complainant’s contract of employment that her religious rights would be respected at the place of her work, and she would not be required to go against her religious beliefs.

In or about 2023, several demands were made to the Complainant to attend mass with residents.  At a meeting on 5 July 2023 the Complainant shared her concerns about that matter with her line manager, Ms. Theresa Duffy.  Ms. Duffy insisted that the Complainant attend mass to support the residents and stated, “most likely you have to attend mass and Brigid Murphy will talk to you”.

The Complainant was extremely stressed about the entire situation. The Complainant subsequently met with Bridget Murphy, the Director of Nursing, on 6 July 2023 to discuss the matter. Ms Murphy told the Complainant categorically that she had to go to mass with the residents.

Due to the complainant’s religious beliefs, she has suffered discrimination at her workplace which has resulted in severe stress and anxiety.

The Complainant suffered direct discrimination as she was treated less favourably than her colleagues in the same working conditions when asked to attend mass against her religious beliefs. The Complainant has suffered from severe stress because of the Respondent’s actions.

The Complainant has suffered indirect discrimination by being asked to attend mass with the residents. There was an agreement in place. There was no obligation on her to attend mass. Instead, the Complainant could take care of other responsibilities during that time. The Respondent has provided no reasonable justification to alter the arrangement in place which would disadvantage the Complainant, compared with her colleagues. When the Complainant requested an explanation, she did not receive a proper or satisfactory response.

The Complainant has suffered discrimination when compared to a hypothetical comparator. An appropriate comparator would be a person in the same situation as the Complainant, but without the protective characteristics, i.e. belonging to a religion which does not recognise going to mass in line with religious beliefs. The Complainant is entitled to be excused from participating in religious practices to which she might object due to her religious conscience. The Complainant is at a disadvantage when compared to a class of person whose religions and/or beliefs do not restrict them from attending mass.

The Complainant has established a prima facie case in that it can be sufficiently presumed within the range of inferences that there has been discrimination. The burden now shifts to the Respondent to prove the contrary.

The Complainant relies on Merriman v St James Hospital UD 365/1986, Samira Achbita v G4S Secure Solutions Tipperary County Council v McAteer EDA153.

4. Summary of Respondent’s Case

The Respondent has not required the Complainant to participate in mass. The Complainant was merely asked to accompany residents to mass, in accordance with her job specification. Furthermore the Respondent minimised these requests wherever possible in the past with the result that the Complainant has not previously had to bring a resident to mass.

The Complainant, who has significant ability to self-roster activities in general, was able to avoid accompanying residents to mass before 2023. However due to the change in the Complainant's unit and by virtue of the preferences of residents in her care, the Complainant was no longer in a position to take up alternative duties while another colleague accompanied residents to mass. The Complainant was advised that she could avoid accompanying residents to mass, so long as there was another staff member available to accompany the residents safely.

The Complainant has alleged that she was provided with a contractual exemption from having to bring residents to attend mass. No such exemption was provided and no formal exemption from accompanying residents to mass was ever agreed with the Complainant. In any event the Respondent has no difficulty in facilitating the Complainant from avoiding accompanying residents to mass where there is sufficient cover in place to enable the Complainant to be substituted by another staff member for the duration of the mass. No objections were brought to the attention of senior management until April 2023.

The Complainant has not established a prima facie case of discrimination in respect of less favourable treatment owing to the fact that she was merely requested to attend mass with residents. The Complainant has not provided sufficient information to meet the standard required to shift the burden of proof to the Respondent. The mere acceptance of the fact that the Complainant was asked to accompany residents to mass does not amount to facts from which it may be presumed that the principle of equal treatment has not been applied or facts of sufficient significance to raise an inference of discrimination.

The Complainant has not put forward any act or omission of the Respondent which could reasonably be described as discrimination. The Complainant was not asked to take part in any religious service, rather the Complainant has been requested to support residents in attending mass in line with their religious beliefs. The Complainant has failed to identify any conditions of her employment which the Respondent has discriminated against her in respect of her complaint. The Complainant has not identified any less favourable treatment to any of her colleagues in respect of her being requested to accompany residents to mass. Rather, what the Complainant seeks is more favourable treatment by virtue of her religion excluding her from carrying out core duties of her role.

The Complainant has not identified a comparator for the purposes of evidencing any party who is being treated more favourably to her (hypothetical or otherwise). The Complainant has not demonstrated that she was placed at a disadvantage by virtue of the requests to accompany residents and as such cannot reasonably assert less favourable treatment, as required.

Should the Court consider that a prima facie case of discrimination on religious grounds has been established (which, it is respectfully submitted, it should not) the accompaniment of residents to mass is objectively justified as it represents a proportionate means to achieve legitimate aims of supporting the residents in the practice of their religion and the Complainant has merely been requested to accompany residents on the rare occasion that there is no other appropriate cover in place. The HIQA National Standards for Residential Services for Children and Adults with Disabilities requires that the Respondent provide adults in their care with :- . choice and control in their daily life; b. care that supports positive behaviour and emotional wellbeing; and c. Staff who have the required competencies to manage and deliver person centered, effective and safe services to people living in the residential service. Essentially these requirements clearly oblige the Respondent to focus on the rights of residents to practice their religion and to facilitate same.

The Respondent rejects the complaint of victimisation. No such complaint was included on the Complainant’s WRC complaint form or pleaded at the WRC hearing. Notwithstanding that fact, the Complainant was not subject to any detrimental act for exercising her equality rights under the Act.

5. Testimony

The Court heard evidence from the Complainant, Judyta Zielinska, her husband, Greg Zielinski and a former colleague, Denise Byrne. Brigid Murphy – Area Director of Nursing, gave evidence on behalf of the Respondent.

Testimony of the Complainant

The Complainant commenced working with the HSE as a multitask attendant in 2015, having moved to Ireland from Poland in 2005. The Complainant informed management that she was baptised and raised as a Jehovah Witness. She was clear from the start that she would not participate in Catholic ceremonies. A fundamental part of her religion is that she is not allowed to go to other churches.

The Complainant initially worked in a house with ten residents and was not obliged to attend mass. Her manager (Ms. B) said there was absolutely no problem. She occasionally drove residents to mass and waited outside the church. When the Complainant transferred to work in a house with eight residents, her new manager (Ms D.), was also supportive and said there was no problem.

On one occasion in 2016 or 2017, the Complainant was asked to do a reading at a mass. She explained that she could not do that and would find someone else. She then told the Director of Nursing, Bridget Murphy, about the matter and about her religious background, as she wanted to do other duties and not wait around outside the church. Ms Murphy told her to liaise with senior staff about what duties to do.

In November 2019, she moved to a house with three residents. There were no issues until April 2023, when she was told by a nurse (Ms. S.) that they were going to mass with three residents. She explained the situation and Ms S said that she would discuss it with management.

On 25 June 2023, Ms B who was working at the residence asked her to check the mass times.  She reminded Ms B that she did not support residents at mass. Ms B seemed shocked and said it was news to her. No one went to mass that day and the Complainant was blamed.

On 5 July 2023, the Complainant spoke to her line manager Teresa Duffy about the incidents.  Ms Duffy, who was previously supportive, said that it was likely that she would have to assist residents at mass and that the Director of Nursing, Brigid Murphy, would talk to her about it. She felt betrayed, as she had always felt safe in her workplace.

The Complainant met Bridget Murphy on 6 July to explain the situation to her. Ms Murphy told her categorically that she had to assist residents going to mass, as the policies in place were there to protect residents. Ms Murphy said that if the Complainant did not attend mass, other colleagues would want the same. The Complainant started crying. She felt that her ethics and beliefs were being dismissed. In Ms Murphy’s meeting note, she acknowledged the historical agreement that the Complainant was not required to accompany residents to mass as she was not a Catholic.

The Complainant said that, in her view, there were no issues until Ms. S. arrived and wanted to take three residents to mass, as before that, only two residents attended mass.

Under cross examination, the Complainant said that she sought support from her trade union but could not recall if she raised a grievance. She accepted that her performance at work was never questioned, and she was never disciplined. She accepted that service users change over time. In her view, the service user needs remained the same. Their physical needs may change but not religious needs. She accepted that she signed the meeting note of 6 July 2023.  She disagreed that the note simply recorded her point of view. In her view, Bridget Murphy made a U-turn.

Ms Denise Byrne

Ms Denise Byrne worked with the Complainant until 2016 or2017. Ms Byrne said that the Complainant was not shy about how she felt and made it very clear how important her religion was to her. There was a specific arrangement in place for the Complainant when she was on duty, she provided transport to and from the church. This arrangement was known by all staff. Ms Byrne said her understanding was that if no Catholic was available, then the staff member had to step in for clients, but there was always a Catholic on the floor. Ms Murphy was the final arbiter and could override any arrangements. Other employees also objected to attending mass; it was not a popular job.

Under cross examination, Ms Byrne accepted that she had no knowledge of any of the meetings mentioned in the Complainant’s evidence.

Greg Zielinski – husband of the Complainant

Mr Zielinski said that he was a Jehovah Witness by birth. His family was jailed in Poland for their religious beliefs.  Because of his beliefs, he could not join the army, does not celebrate Christmas or birthdays, can never take a blood transfusion and must always stay outside a church.

Brigid Murphy – Area Director of Nursing

Staff are responsible for supporting residents who are all non-verbal adults and keeping them safe. Religious services are provided once a month and mass is celebrated at Christmas and Easter. 

Ms Murphy was unaware of any discussions the Complainant may have had with other management about attending mass until they met on 6 July 2023. Prior to that, she recalled a conversation on one occasion when the Complainant asked her if it was okay if she did not attend mass that day. It was not a problem, and she did not enquire into why the Complainant did not want to attend mass.

Before the meeting on 6 July 2023, Ms Murphy asked Ms Duffy for a file note of her meeting with the Complainant the previous day, as is her usual practice. At the meeting on 6 July 2023, the Complainant said that she was unable to attend mass because of her religious belief. She was upset and aggrieved that Ms Duffy had made a U-turn, and she queried why things had changed.

The house where the Complainant worked had three residents. Ms Murphy explained to the Complainant that there was no problem if someone else was available to support the residents. She advised her to go back and speak to Ms Duffy about the matter, who was best positioned to make decisions at the residence. As a CNM2, Ms Duffy had authority to manage staff and the authority to say if arrangements in place could no longer be accommodated. Ms Murphy said that she did not record in the meeting note that there was a historical agreement with the Complainant in place. The meeting as drafted reflects the Complainant’s “point of view”.

The Complainant was absent on sick leave on 7 July 2023. If she had engaged further and raised a grievance, they could have addressed the issue. The Complainant never raised a grievance about the matter, nor was she ever subject to any disciplinary process.

Under cross examination, Ms Murphy said that she could not recall any conversation with the Complainant in 2020 about attendance at religious services. She did not deny that the Complainant had an arrangement in place about attending mass. Ms Murphy said that she was ultimately responsible for the resourcing decisions and as the Director of Nursing she had authority to override decisions of a CNM2. She made the resourcing decision in conjunction with Ms Duffy and told the Complainant that there was no issue if someone else was available to support residents. 

Ms Murphy did not believe that she had contravened the Complainant’s fundamental beliefs or that she had fundamentally changed her terms and conditions of employment. The HSE issues a contract of employment to employees, and the responsibility of all staff is to support residents. Employees are not asked about their religious beliefs at interview. They may be asked if there are any issue with carrying out a role, so they can consider if that role is suitable for them.

6. Relevant Law

Section 6 of the Act provides, in relevant part, as follows: -

• (1) “For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances 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’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

• (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

Section 85A (1) of the Act provides: -

85A.— (1) 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 the contrary.

The comparators.

28.— (1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

(d) in relation to the religion ground, C and D have different religious beliefs or C has a religious belief and D does not, or vice versa;

Victimisation

“victimisation” shall be construed in accordance with subsection (2).

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

7. Deliberations

The complaints before the Court relate to allegations of (i) discrimination, (ii) victimisation and (iii) indirect discrimination on the ground of religion. At the outset of the hearing, when invited to expand upon the basis for each of the three complaints, Counsel for the Complainant said that would emerge through evidence.

As the complaint was lodged to the WRC on 2 January 2024, the relevant period for consideration by the Court, having regard to the statutory time limits, is the period from 3 July 2023 to 2 January 2024. The Complainant has been absent on sick leave from the 7 July 2023.

Burdon of Proof

The Court must consider whether primary facts can be established by the Complainant from which discrimination can be inferred. The Complainant does not have to establish that discrimination occurred, only that it is a likely explanation for the facts presented. It is for the Court to consider, by a process of inferential reasoning, the possible conclusions which may be drawn to explain a particular set of facts. Once the Court is satisfied that the Complainant has established facts from which discrimination may be inferred, the onus of proving the contrary shifts to the Respondent.

The established test for ascertaining if the burden of proof shifts to the Respondent was set out by this Court in its determination in Mitchell v Southern Health Board [2001] E.L.R. 201. That three-tier test provides: -

• 1) It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so. he or she cannot succeed.
• 2) If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.
• 3) If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent.

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that: -

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

The Primary Facts

In this case, the primary facts asserted by the Complainant to ground her complaints are as follows:  - the Complainant is a Jehovah’s Witness; a fundamental tenet of her religious belief is that she is not allowed to go to other churches; the Respondent reneged on an agreement that she was not required to undertake duties contrary to her religious beliefs, specifically attending at mass; the Complainant was subject to less favourable treatment because of her religious beliefs and as a result has suffered stress and anxiety; the Complainant is unable to perform her duties because of discrimination on the religious ground.

The Complainant submits that these facts are of sufficient significance to raise an inference of discrimination such that the burden of proof in this case rests with the Respondent.

Having regard to the evidence proffered the Court finds that the facts in this case are as follows:

The Complainant works as a multitask assistant. Her duties include supporting residents when they undertake activities, which may include attending religious services.

As a Jehovah’s Witness, a fundamental tenet of her religious belief is that she is not allowed to go into other churches. The Complainant sought an accommodation to be treated differently than other colleagues in the workplace because of her religious beliefs. The Respondent accommodated her request for a lengthy period.

While the Complainant contends that the accommodation provided to her (that she was not required to attend mass) became a binding agreement such that it was incorporated into her terms and conditions of employment over time, the Court finds no basis or evidence to support that assertion. In the Court’s judgment, the accommodation provided to the Complainant did not form part of her contractual terms and conditions of employment.

Circumstances in the workplace changed and the Complainant was told that she may have to support residents attend mass if there was no other appropriate cover in place. She was told to go back and to engage further with her line manager in relation to that matter. The Complainant has been absent from work since 7 July 2023 on sick leave.

The Comparator

To ground a claim of discrimination it is necessary to point to how another person, not having the same protected characteristic relied upon, was, is or would be treated in a comparable situation. The Complainant must demonstrate that she was treated less favourably than that other person in a comparable situation. Any comparator can be actual or hypothetical, as a complainant can argue that he or she has been treated less favourably than another would have been or would be treated in a comparable situation.

There was a lack of clarity about who the Complainant was comparing herself to for the purpose of her complaint.  The Respondent submits that the Complainant has not identified a comparator for the purposes of evidencing any party who is being treated more favourably to her (hypothetical or otherwise). The Complainant contends that she suffered discrimination when compared to a hypothetical comparator. The Complainant’s written submission referred to several possible hypothetical comparators. When the Court sought clarity on that matter at the hearing, no clarification was provided or evidence proffered on that point at the hearing.

Was the Complainant subject to direct discrimination on the ground of religion?

Discrimination occurs where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the protected grounds under the Act.

The Complainant submits that she was subject to direct discrimination as she was required to undertake duties which are contrary to her religious beliefs. She contends that she was treated less favourably than her colleagues in the same working conditions as she was asked to attend mass against her religious belief, which resulted in severe stress and anxiety.

The Complainant’s evidence was that she was subject to direct discrimination on 6 July 2023 when she was told categorically by Brigid Murphy, the Area Director of Nursing, that she would have to assist residents going to mass, which was contrary to her fundamental beliefs.

Ms Murphy’s evidence was that the policies in place where there to support and protect the residents. While she was ultimately responsible for resourcing, she told the Complainant that there was no issue if someone else was available to support residents and advised her to go back speak to her line manager, Ms Duffy, about the matter who she was best positioned to make resourcing decisions at the residence. 

To ground a claim of discrimination the Complainant must demonstrate a prima facie case of unfavourable treatment compared to another person in a comparable situation. Having a characteristic protected under the Act is not sufficient to ground a claim of direct discrimination. In this case, the Complainant did not support any residents attend mass during the relevant period for the complaint. The discriminatory action complained of by the Complainant was a request to assist residents attending mass.  The Complainant presented no evidence to support her assertion that she was subject to less favourable treatment because of her religious beliefs than another person was or would be treated in a comparable situation in the relevant period for the complaint.

The Complainant has not demonstrated how she was treated differently, or how she suffered any detriment due to her religious beliefs, nor has she made out a case of how a request to support residents in attending mass, constitutes adverse ‘treatment’ in relation to a comparator.  

On the facts as presented, the Court finds that the Complainant was not subject to any adverse action, nor was she threatened with any adverse action by the Respondent. The Court finds that she has failed to make out a prima facie case in relation to her complaint of direct discrimination. Accordingly, the Court finds that this aspect of her complaint is not well founded.

Was the Complainant subject to victimisation on the ground of religion?

The Act provides protection for workers against adverse treatment where they make a complaint of discrimination or exercising a right under the Act. The dismissal or adverse treatment must be in reaction to the employee having made “a protected” act, i.e., a complaint of discrimination to the Respondent.

In this case, the Complainant contends that she was victimised and discriminated against as she was singled out because of her religious belief, and she felt victimised. Her evidence at the hearing was that she believes that another member of the Jehovah Witness community employed by the Respondent has been accommodated in not being required to attend at a Catholic Church.

The Respondent rejects the complaint of victimisation. It contends that no such complaint was included on the Complainant’s WRC complaint form or pleaded at the WRC hearing. Notwithstanding that fact, its position is that the Complainant was not subject to any detrimental act for exercising her equality rights under the Act.

The Court notes that no decision regarding a complaint of victimisation was considered or decided by the Adjudication Officer. The Court’s jurisdiction in this case is confined to hearing an appeal of an Adjudication Officer’s decision. As no decision in relation to a complaint of victimisation was made by the Adjudication Officer, the Court has no jurisdiction to consider that element of the complaint.

Furthermore, no evidence was provided that the Complainant ever made a complaint of discrimination on the religious ground to the Respondent. Her evidence was that she could not recall if she ever lodged a grievance and Ms Murphy’s evidence was that no grievance was lodged by her.  The Complainant did not point to any specific acts of victimisation in her evidence. The Court finds that no evidence was provided to support the assertion that the Complainant was victimised for making a complaint of discrimination on a protected ground or exercising a right under the Act to ground her complaint of victimisation.

Accordingly, the Court finds that no case was made out by the Complainant to support her contention that she was subject to victimisation on the protected ground of her religious belief.

The Court finds that the Complainant has failed to make out a prima facie case in relation to her complaint of victimisation. Accordingly, the Court finds that this aspect of her complaint is not well founded.

Was the Complainant subject to indirect discrimination on the ground of religion?

Discrimination is rarely overt. Indirect discrimination arises where an apparently neutral provision, criterion or practice puts persons having a protected characteristic at a particular disadvantage. It is a defence to a claim of indirect discrimination to show that a provision, criterion or practice is objectively justified on ground unrelated to a discriminatory ground.

In the case of religious discrimination, an arrangement or practice requiring an employee to carry out work that conflicts with their fundamental beliefs may give rise to indirect discrimination in certain specific circumstances. Less favourable treatment and indirect discrimination on the ground of religious belief may take different forms. An employee who alleges indirect discrimination must show that the discrimination involves a collective disadvantage as compared with other employees who do not share the same religious belief.

In this case, the Complainant relies on a conversation with Brigid Murphy on 6 July 2023 to ground her complaint of indirect discrimination. She contends that she was subject to indirect discrimination as she was told categorically by Ms Murphy that she would have to attend mass with residents, contrary to her religious beliefs, and contrary to an agreement in place that she did not have to attend mass. The Complainant submits that the Respondent has placed her at a disadvantage, compared with her colleagues and no reasonable justification was provided for altering the arrangement in place.

The Respondent’s position is that no formal exemption from accompanying residents to mass was ever agreed with the Complainant. Ms Murphy’s evidence was that she outlined the resourcing challenges in smaller residential units and explained to the Complainint that there was no difficulty in facilitating her request not to accompany residents to mass where there is sufficient cover in place, but she could not provide a blanket assurance in that regard. She asked the Complainant to go back and discuss the matter further with her line manager who was better positioned to assess the resourcing requirements in her place of work. The Complainant did not do that.

The Court found the Complainant to be a genuine witness who gave compelling evidence about her anxiety in relation to the possibility of being requested to attend religious services contrary to her faith. 

While the Respondent submits that others in the employment have never raised objections to accompanying residents to mass, the Court finds that fact is not a relevant factor in its consideration of a complaint of indirect discrimination under the Act.

Counsel for the Complainant contends that the Area Director of Nursing, Bridget Murphy, did not appear to accept that it was a tenet of the Complainant’s religious belief that she could not attend mass and that Ms Murphy’s evidence that the Complainant was not required to participate in mass belies an ignorance and lack of understanding of the Complainant’s religious beliefs. While that may be the Complainant’s viewpoint, to ground a complaint of indirect discrimination, the Complainant must establish sufficient facts to show how she was subjected to indirect discrimination on the grounds of her religion in the relevant period. When the Court sought specific details in relation to the claim of indirect discrimination, the Complainant offered no objective evidence, other than a general assertion that she was subject to indirect discrimination.

In grounding her complaint of indirect discrimination, the Complainant does not assert that she was required to support residents in attending attend mass during the relevant period for her complaint. Nor has she presented any evidence of adverse treatment during the relevant period. The Court is being invited to infer that the outcome of the conversation with the Complainant’s line manager is that the Complainant will be compelled to attend mass, thereby placing her at a collective disadvantage to others. This would involve the Court engaging in an exercise of speculation and the Court cannot pre-empt the outcome of that conversation. The Court notes that the conversation has yet to take place, as the Complainant has been absent from on certified sick leave since 7 July 2023.

Considering the above and having examined the primary facts presented at the hearing by the Complainant, the Court finds that they are insufficient to show that, on the balance of probabilities, she was subjected to indirect discrimination on the grounds of her religion in the relevant period for her complaint.

Accordingly, the burden of proving the absence of discrimination does not shift to the Respondent. 

In light of that finding, it is not necessary for the Court to address matters raised by the Respondent about the appropriate comparator in this case, nor is it necessary to consider the Respondent’s assertion that the accompaniment of residents to mass is objectively justified in the Complainint’s case as it represents a proportionate means to achieve legitimate aims of supporting residents in the practice of their religion.

8. Finding

For the reasons set out above, the Court finds that the Complainant has not presented sufficient facts in this case from which an inference of direct discrimination, during the relevant period for the complaint, could be drawn.

For the reasons set out above, the Court finds that the Complainant has not presented sufficient facts in this case from which an inference of victimisation during the relevant period for the complaint could be drawn.

For the reasons set out above, the Court finds that the Complainant has not presented sufficient facts in this case from which an inference of indirect discrimination during the relevant period for the complaint could be drawn.

The appeal fails and the decision of the Adjudication Officer is affirmed.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
AL	______________________
04 February 2026	Deputy Chairman

NOTE

Enquiries concerning this Determination should be in writing and addressed to Ms Amy Leonard, Court Secretary.