EDA2682

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00053066 (CA-00064849-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 24 March 2025.

A Labour Court hearing took place on 22 January 2026.

The following is the Determination of the Court.

DETERMINATION:

1. Background to the Appeal

This is an appeal by Mr Harry Phelan (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00053066 /CA-00064894-001, dated 5 March 2025). Notice of Appeal was received in the Court on 27 March 2025. The appeal was determined under the Employment Equality Act 1998 (‘the 1998 Act’). The Court heard the appeal in Dublin on 22 January 2026 along with a related appeal (ADE/26/25).

2. Factual Background

It is common case that the Complainant has a disability within the meaning of the Employment Equality Act 1998. In 2024, he advised his employer, TUSLA, (‘the Respondent’) that he wished to participate in a programme to be run on a half-day per week basis over twenty-two weeks that had been recommended by his medical team. Initially, the Respondent informed the Complainant that he would be granted the time off requested to attend the programme but would be required to take annual leave and/or unpaid leave to cover his absences from work. The Complainant had attended a similar programme some time previously and on that occasion he was permitted, he said, to work back the time accrued during his absence by working an extra hour per day. The Complainant requested that the same approach be adopted in 2024. Having considered this request, the Respondent proposed to the Complainant, by way of compromise, that he could accrue flexitime in line with the Midlands Interim Flexible Working Policy and take the balance of the time needed as either annual leave or unpaid leave. Nevertheless, it appears that the Complainant proceeded to attend the programme and advised management that he was working up the time in the same manner as he had done previously.

3. The Complaint

The Complainant alleges that he has been discriminated against by the Respondent in a number of respects arising from his request to attend the aforementioned programme. He has not identified any comparator – actual or hypothetical – by reference to which he might ground his claim of less favourable treatment. In his written submission to the Court, he stated that it would be ‘impracticable’ for him to do so.

The Complainant submits that management’s initial proposal that the time he needed to attend the programme be taken as annual leave and/or unpaid leave was discriminatory. He further submitted that management’s decision in this regard was motivated by an animus against him arising from a separate and ongoing industrial relations dispute he was involved in at the time.

The Complainant also submits that the Respondent failed to make reasonable accommodation for his disability. He outlined this aspect of his complaint as follows in his written submission to the Court:

“’Reasonable accommodation’ or as it is also termed ‘Appropriate Measures’ have not been afforded to me, nor have they been explored, nor has there been any discussion with me in terms of either seeking to adjust my attendance hours at work, or affording me the opportunity to work from home, or explore any other possibility which would prevent me from being negatively impacted and disadvantaged, either financially or through a loss of income, or in terms of reduced annual leave, as a result of my specific disability through attending my mental health programme. The particular programme in relation to my specific disability-related needs was only available to me by attending in person one morning per week for a number of weeks.”

The next element to the complaint of discrimination advanced by the Complainant is what he terms the Respondent’s failure to provide any rationale to him for its initial decision that required him to avail himself of annual leave and/or unpaid leave whilst attending the programme. He refers to specific correspondence he received from the manager dealing with his request dated 8 July 2024 which he submits contained no rationale at all for the Respondent’s decision. He then refers to a further, more detailed, letter dated 9 September 2014 which he complains was received some fourteen weeks after the date of his application to attend the programme. He also complains that the aforementioned document is ‘devoid of any supporting documentation. No policies. No procedures. No consultation. No records of consultations with any other Tusla member, or external party. No evidence of any considerations accompanied by any clear rationale.’

4. The Respondent’s Submission

The Respondent submits that it has complied with its obligations under the 1998 Act by making reasonable accommodation for the Complainant. The Representative told the Court that an employee must make a leave application in respect of any and all absences from the workplace. Leave can be statutory (such as annual leave) or non-statutory (such as unpaid leave). However, she said, there is no leave type available that permits an employee to take time off work to attend medical appointments or programmes such as the Complainant in this case wished to attend.

It was also submitted on behalf of the Respondent that, at the time the Complainant made his request, there was no nationally agreed flexitime arrangement in place in the Respondent organisation. Interim guidelines had been agreed at a local level (referred to above as the Midlands Interim Flexible Working Policy). Those guidelines, the Court was told, allowed for business support staff at Grade III to Grade VII level in the Midlands to work a longer day from 8.30 am to 6.30 pm and accrue up to a maximum of 10 hours in a calendar month. It appears that the Complainant did not fall into the staff cohort to which the guidelines applied, the Respondent nevertheless offered him the option of utilizing the scheme to facilitate his attendance on the programme.

5. Burden of Proof

Section 85A(1) of the 1998 Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“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.”

This Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“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 a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

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”.

6. Discussion and Decision

The within appeal was determined under the 1998 Act by agreement with the Parties as the first instance decision had been made under this legislation notwithstanding the Complainant’s error in referring it under the Pensions Act 1990.

The Court, having carefully considered the Complainant’s written and verbal submissions finds that he has not established on a prima facie basis that he was treated less favourable than a person with no disability or a different disability had been or would be treated by the Respondent. Furthermore, the Court finds that the Respondent did in fact make ample effort to support the Complainant in his wish to attend the twenty-week programme and, in granting him access to a flexitime scheme that was not strictly-speaking applicable to him to do so, fulfilled its obligations, in the Court’s view, to make reasonable accommodation for his disability.

The Court finds that the within complaints are not well-founded, the appeal is dismissed and the decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
AR	______________________
29 January 2026	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.