EDA2683

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00053066 (CA-00064849-002)

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-00064894-002, 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 the manner in which the Respondent dealt with his request for reasonable accommodation in the context of attending for a half day over 22 weeks at a programme connected to his disability constitutes penalisation within the meaning of the 1998 Act. He expressly told the Court verbally and in his written statement that the alleged penalisation by the Respondent was in response to, and motivated by, a separate and ongoing industrial relations dispute he had with his employer about a regrading issue.

His written submission to the Court states:

“The sole particular purpose for discriminating against me in the manner in which I have outlined was I believe solely to ‘penalise’ me for the issues that I had raised in my documents I forwarded to Ms Dempsey on the 31st May 2024 in relation to her Draft Report into our Stage 1 Grievance”.

4. The Respondent’s Submission

The Respondent denies that it penalised the Complainant in any way at all.

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. Victimisation within the meaning of the 1998 Act

The meaning of ‘victimisation’ for the purposes of Part VII of the Act of 1998 is set out as follows in Section 74(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. 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 victimised within the meaning of section 74(2). It is self-evidently the case that the matter he has identified as the alleged causal factor for the actions of the Respondent he complains about (i.e. his industrial relations dispute) does not fall within any of the paragraphs (a) to (g) in subsection (2) of section 74. In short, the Complainant’s allegation that he has been penalised by the Respondent is misconceived.

The Court, therefore, finds that the within complaint is 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 Determination should be in writing and addressed to Aidan Ralph, Court Secretary.