Complainant

Respondent

Parties

Olwyn Branigan Curran

An Garda Síochána

Representatives

Aaron Shearer BL

Stephen O’Sullivan BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00051974-001

28/07/2022

The complainant is a civilian member of AGS.  She joined the organisation in 1992 and is now an executive officer, working as an administrator on the Performance and Accountability Framework (PAF).  Her job is to manage the Garda PULSE system for her district, to ensure that each incident is correctly recorded and to produce reports from the information on the system. 

The complainant was the victim of a crime of harassment when she was sent offensive messages on Facebook Messenger by a member of AGS.  From the perspective of employee welfare, she claims that she was treated less favourably compared to the person who carried out the crime.  Her complaint is that she has been discriminated against on the ground of gender.

Before I consider the issue of discrimination, I intend to summarise the evidence of the witnesses and, at the same time, to set out the chronology of the events that led to this complaint. 

June – September 2019

In June 2019, the complainant was promoted to executive officer grade and she moved from a station in Drogheda to Ardee Garda Station.  In August that year, she got a friend request on Facebook from Sergeant David Ring, who she knew from working in Drogheda.  She said that the messages were friendly at first, but around August that year, she said that they became “vile, disturbing and disgusting.”  On September 6th, she spoke to a friend who is an inspector and he advised her to take screen shots of the messages and to keep them.  He also advised her to send a message to Sergeant Ring and to tell him that the messages were unwelcome and that they were to cease.  When she sent a message to Sergeant Ring telling him to stop sending her messages, he replied and apologised and said that it wouldn’t happen again.

March – November 2020

Supintendent James O’Leary was the district officer in charge of Ardee Garda Station.  On March 2nd 2020, two women came to the station and reported that Sergeant Ring sent them offensive messages.  Superintendent O’Leary gave evidence that he assigned Inspector Ronan Carey to take statements from the two women, which he did the following day.

Sergeant Ring was in charge of the continuous professional development unit in Drogheda and he had responsibility for probationer Gardaí in the Louth Division.  On March 4th 2020, he went to Ardee Station to conduct reviews with two new Gardaí.  When she saw him in the car park, the complainant said that she panicked.  She wanted to reach her office without meeting Sergeant Ring and this involved going through Superintendent O’Leary’s office.  She told Superintendent O’Leary that she didn’t want to see Sergeant Ring. 

Superintendent O’Leary attended the probation review meetings with Sergeant Ring.  He gave evidence that he was thinking about the two women who came to the station two days previously and, when the probation review meeting was over and Sergeant Ring had left the station, he asked the complainant to explain why she didn’t want to come into contact with him.  In her evidence, the complainant said that she handed her phone with the Facebook messages open to Superintendent O’Leary.  She said that she was too embarrassed to stay in the room and she went to her office while he read them.  Superintendent O’Leary said that he read the messages and that he was shocked and disgusted.

Superintendent O’Leary said that he had a long conversation with the complainant and he asked her if she wanted to report a criminal offence.  She said that she would talk about the situation with her husband before deciding what to do.  Superintendent O’Leary said that he asked the complainant for permission to report the messages to the chief superintendent, Christy Mangan and to Inspector Carey, and she agreed to this.

Superintendent O’Leary said that he met the complainant the next day and she confirmed that she wanted to report the offensive messages as a crime.  Superintendent O’Leary said that he wrote a report for Chief Superintendent Mangan and he included the statements from the two women who were interviewed by Inspector Carey on March 3rd.  The complainant had not yet given her statement.  Superintendent O’Leary recommended that a person of sufficient rank outside the district was appointed to conduct a criminal and a disciplinary investigation.

Superintendent Gordon Englishby was stationed in Baileboro and he gave evidence that he was appointed to conduct a criminal investigation and a disciplinary investigation.  The investigation was concerned with the sending of the offensive messages reported by two members of the public on March 2nd 2020 and the messages reported to Superintendent O’Leary by the complainant on March 4th.  A year later, a fourth person came forward with a similar complaint.

On March 6th 2020, Superintendent Englishby said he served Sergeant Ring with notice of suspension in accordance with AGS’s 1997 Disciplinary Regulations.  He said that he contacted the Garda welfare services and told them that Sergeant Ring had been suspended.  He advised Sergeant Ring to contact his representative in the Association of Garda Sergeants and Inspectors and he told him that the disciplinary investigation was “in abeyance” until the outcome of the criminal investigation was known.  In cross-examining, Mr Shearer asked Superintendent Englishby why he didn’t offer the complainant the same access to welfare support.  Superintendent Englishby replied that he was dealing with the complainant as a victim of a crime and her welfare was a matter for her line manager.

On March 12th 2020, in accordance with s.21 of the Criminal Justice Act 1994, Superintendent Englishby met the complainant and took a statement from her.  When the restrictions due to Covid-19 were announced on March 13th, the complainant was transferred to Collon station because Ardee was too small to accommodate social distancing for the personnel in that station.

On July 1st 2020, Sergeant Ring was 60 and, in accordance with his contract, he retired.  The Policing, Security and Community Safety Act 2024 provides that a disciplinary process may continue after a member of the force has retired, but that provision wasn’t in place in 2020.  After Sergeant Ring’s retirement, no further action was taken with regard to the disciplinary investigation. 

Superintendent Englishby said in evidence that crimes of harassment are not “shielded from view” on PULSE and he was conscious that the complainant had a central role in the region and that a lot of people knew her.  He said that he didn’t want “nosey parkers or browsers” seeing the report.  He was aware that a victim of crime letter would not be generated if the crime wasn’t uploaded on PULSE, but he said that the Victims of Crime legislation is not prescriptive about how to provide support to victims.  When he was asked by Mr Shearer if it occurred to him to contact the welfare services to ask them to support to the complainant, Superintendent Englishby said that he appointed Garda Karl Colgan as he point of contact.

In her evidence, the complainant said that Garda Colgan contacted her regularly and was very supportive and kept her up to date about what was happening.  On September 4th 2020, The complainant met Garda Colgan to make a statement for the Director of Public Prosecutions (DPP) regarding the times that the Facebook messages were sent by Sergeant Ring.  She said that Garda Colgan told her that the PULSE system had a record of Sergeant Ring’s phone being seized as part of an investigation.  In a phone call with Garda Colgan the following day, the complainant told him that the incident wasn’t on the PULSE system and that, contrary to the Victims Charter, as a victim of crime, she received no victim of crime letter and no welfare services.  She said that, when a crime is recorded on the PULSE system, a letter is automatically sent to the victim.  Shortly after her call with Garda Colgan, Superintendent Englishby phoned the complainant and he explained that, in the interest of her welfare, he had decided not to put the incident on PULSE.  When she told Superintendent Englishby that she wasn’t happy that it wasn’t on the PULSE record, on September 6th, the incident was uploaded to the PULSE system.  The complainant said that she believes that the decision not to put the incident on PULSE was to protect Sergeant Ring and so that others in AGS would not know that he was the subject of a criminal investigation. 

Before the conclusion of the hearing on September 3rd 2025, Superintendent Englishby gave evidence that he checked the PULSE system and he confirmed that Inspector Ronan Carey phoned in a report to the Garda Information Services Centre in Castlebar on March 6th 2020 concerning complaints of harassment by two members of the public.  This report was updated by Superintendent Englishby on July 6th 2020 following his interview with Sergeant Ring on July 2nd.  In the updated report, Sergeant Ring was named as the suspected offender.  Superintendent Englishby agreed with Mr Shearer that, by July 6th, Sergeant Ring had retired and that he was named on the PULSE system after he retired.  

The complainant had a PAF meeting with Superintendent O’Leary every Monday and, in her evidence, she said that, on Monday, September 7th 2020, she told him that, as a member of AGS and, as a victim of a crime, she was entitled to welfare services, but that none had been offered to her.  In her evidence, she said that, if the crime had been recorded on the PULSE system, she would have automatically received a victim of crime letter with information about how to get support.  The complainant was friendly with an inspector who visited Sergeant Ring and she knew that he had been offered employee welfare services.  At the meeting on September 7th, Superintendent O’Leary apologised to her for not considering if she needed support.

In his evidence, Superintendent O’Leary said that a victim of crime letter is not sent to a victim in all circumstances; for example, victims of domestic violence are not sent a letter.  He said that an employee suffering from a work-related problem or a personal issue would be offered the support of the employee welfare services.

Superintendent O’Leary said that he understands now that the move to the Collon station on March 13th 2020 had the effect of isolating the complainant.  During the Covid-19 restrictions, day to day interactions were by teleconference and he said that this mitigated against him picking up on welfare issues.  He said that the complainant always came across as a forthright and robust individual who spoke her mind and he didn’t pick up on the fact that she was suffering.  He said that, when he heard that she was suffering, he did something.  Superintendent O’Leary said that he asked the complainant if he could contact the welfare services on her behalf.  Garda Cathal O’Toole was then appointed to support her.  Superintendent O’Leary apologised for the fact that he didn’t notice that she needed support.  

Under cross-examination by Mr O’Sullivan, the complainant agreed that, before September 2020, she hadn’t asked for welfare support, but she said that she should have received a victim of crime letter.  As a member of AGS, she said that she would have expected a phone call to enquire about her welfare.

The complainant said that she got a phone call from Garda O’Toole on September 8th 2020.  She had a few discussions with him and she met him for coffee.  She explained that she had been the victim of a crime, but she didn’t get a letter from the victim of crimes support staff.  She said that Garda Karl Colgan kept her informed about the progress of the case.  Because the incident wasn’t recorded, and, with no phone calls or support, she felt that she was expected to keep quiet about a “big dirty secret.”  She was surprised and angry about how she was being treated.  On Garda O’Toole’s recommendation, she decided to get some counselling.  From the date that she was contacted by Garda O’Toole, the complainant said that she was satisfied with the welfare services provided to her.

Also on September 8th, Superintendent O’Leary offered the complainant the option of swapping locations with a colleague who wanted to move to Ardee Garda Station to be nearer her home.  On November 16th 2020, the complainant moved back to the station in Drogheda.

January 2021

On Friday, January 29th 2021, the complainant said that she was in her office in Drogheda when, through open doors, she overheard the divisional clerk telling the chief superintendent that Superintendent Englishby had phoned with the DPP’s directions in the David Ring case.  The following day, the complainant said that she sent a text message to Garda Colgan to ask him about the DPP’s directions.  Garda Colgan was on leave, but he returned the call later and said that he had contacted Superintendent Englishby, who informed him that the DPP had decided to prosecute Mr Ring.  As the injured party, the complainant claims that she should have been informed by the chief superintendent or the superintendent on January 29th 2021 and she shouldn’t have had to look for the directions on January 30th based on a conversation she heard the day before. 

In his evidence, Superintendent Englishby said that the DPP’s decision was issued to the office of the Chief State Solicitor, who confirmed it to him as the investigating officer.  On Friday, January 29th, when he got the confirmation, he phoned the chief superintendent’s clerk in the Louth region to let him know.  On the same day, he said that he sent the confirmation by email to Garda Karl Colgan, who was the liaison Garda and who was keeping the complainant informed of the milestones in the case.  Garda Colgan was on leave on January 29th, and when he returned to work, he would have read his email and contacted the victims, including the complainant.  Superintendent Englishby said that, with regard to communication about this matter to the complainant, he is satisfied that Garda Colgan performed his role correctly.

In his evidence, Superintendent O’Leary said that the way in which the DPP’s directions were communicated was standard and completely normal. 

June – July 2022

The complainant said that she was feeling very lonely and that she felt that she couldn’t speak to anyone about the Facebook messages of August and September 2019 and the effect on her of reporting the matter in March 2020.  She contacted her union representative in Fórsa and, on his advice, on June 7th 2022, she sent an email to the Chief Administrative Officer (CAO) of AGS, Mr Joseph Nugent, with a detailed complaint.  In this document, the complainant set out the timeline of the events from August 2019 until January 2021 when she was notified of the DPP’s decision to prosecute.  She referred to the fact that no internal disciplinary enquiry had taken place with regard to the sending of the messages by Sergeant Ring, the absence of a PULSE report until September 2020, the failure to follow the Victims Charter and to issue a victim of crime letter or to provide her with welfare support.  She claimed that Sergeant Ring received support from the welfare officer and that an inspector was appointed to him on welfare grounds. 

On June 10th 2022, Mr Nugent was in the station in Drogheda on an unrelated matter and he had a meeting with the complainant.  In her evidence, the complainant said that Mr Nugent asked her if she felt like resigning, and she replied that she did, but that she needed to continue working.  She said that Mr Nugent didn’t suggest that she should resign and that her conversation with him was very friendly.  She said however, that she was shocked when she received his letter of June 24th 2022 in response to her formal complaint.  A copy of this letter was submitted in evidence.  At paragraph five of seven paragraphs, Mr Nugent reminded the complainant that the PULSE system should not be used for personal enquiries.

The complainant said that she was shocked at the remarks about the use of the PULSE system.  She said that her job is to deal with PULSE and that she could be asked to run reports by superintendents in any district if their administrator was on leave.  She believes that this statement was “a rap on the knuckles” and she thinks that if Mr Nugent had properly understood the job of a PAF administrator, he wouldn’t have put that paragraph in the letter.  When she read the letter, The complainant said that she felt very deflated and angry. 

Under cross-examination, the complainant agreed that she wasn’t admonished in the letter from Mr Nugent, but she did not agree that there was no statement about wrongdoing and she did not accept that Mr Nugent’s remarks about the PULSE system was, as Mr O’Sullivan suggested, “just sensible advice.”

In his direct evidence, Superintendent O’Leary said that he can’t say why the paragraph about accessing the PULSE system was in the letter.  He said that he never saw this paragraph in a letter previously.  In response to questions from Mr Shearer, he said that, although he didn’t interpret it as a rebuke of the complainant, he wouldn’t have included that paragraph in the letter.

On July 28th 2022, the complainant submitted this complaint of discrimination to the WRC.  At the hearing on September 3rd 2025, she said that she did so “in the hope that this would never happen to another member of AGS and to show that I did nothing wrong.”  She complained that Sergeant Ring was suspended and given access to the welfare officer and got welfare visits from an inspector.  She said that she didn’t get the same treatment.

Following the complainant’s promotion in June 2019 and her transfer from Drogheda Garda Station to Ardee, Sergeant David Ring, with whom she had worked in Drogheda, sent her sexually explicit messages on Facebook.  In his submission on behalf of the complainant, Mr Shearer said that, at the time, she was afraid of the professional consequences for her if she made a complaint.  On the advice of an inspector, she wrote to Sergeant Ring and asked him to stop sending her the messages.  Sergeant Ring apologised and sent no further messages.

Although she had reported the messages to an inspector, on March 4th 2020, when Sergeant Ring arrived in Ardee Station, the complainant was distressed and she told Sup James O’Leary what caused her distress.  She decided to report the incidents as a crime of harassment.  A criminal and a disciplinary investigation were initiated, under Superintendent Gordon Englishby.  Sergeant Ring retired in June 2020 when he reached the age of 60.  Mr Shearer suggested that the fact that Sergeant Ring retired on age grounds and wasn’t subjected to an internal disciplinary investigation suggested to the complainant that AGS did not view the conduct in as serious a light as it ought to have done. 

Notwithstanding the fact of sexual abuse and discriminatory treatment at work, and notwithstanding the fact that the complainant is a victim of crime, and that she had the prospect of testifying at a criminal prosecution of a member of AGS, she was offered no welfare services or support in the months after she reported the abuse.

On June 7th 2022, the complainant lodged a formal complaint regarding her employer’s failure to provide proper safeguarding measures at work.  In response, on June 24th 2022, she received a letter that contained a warning to her about accessing personal data and advising her that the PULSE system should only be used for legitimate business purposes and never for personal enquiries.  She was dismayed that her complaint should be responded to with a challenge to her good faith and integrity.  One of the effects of the counselling she received is an acceptance that she isn’t responsible for the conduct of Sergeant Ring.  The warning from her employer regarding her own conduct played into her tendency to blame herself.  It also compounded her sense that the respondent was not dealing with the matter appropriately.

On July 28th 2022, the complainant submitted this complaint to the WRC.  Her case is that the discrimination against her is ongoing and she is seeking compensation for the effects of acts of discrimination or victimisation within the six years before she submitted her complaint.  She claims that the most recent act of discrimination was in the letter of June 24th 2022.

Time Limit for Submitting a Complaint

This complaint was submitted to the WRC on July 28th 2022.  Referring to the time limit for submitting complaints which is set out at s.77(5)(a) of the Employment Equality Act 1998, Mr O’Sullivan said that, if the complainant is to succeed in an application for an extension of the six-month time limit to 12 months, she must refer a complaint about an incident that occurred after July 29th 2021.  He argued that any delay on the part of the respondent in dealing with a complaint is not a reasonable cause for extending the time limit.  The complainant must point to an alleged incident of discrimination that occurred between July 29th 2021 and July 28th 2022.

Considering the issue of reasonable cause for the delay of more than six months, Mr O’Sullivan referred to the decision of the High Court in Minister for Finance v Civil and Public Services Union[1], where it was held that the onus is on a complainant not only to set out the reasons that explain the delay, but also, to show that the reasons are a justifiable excuse for the delay.  Mr O’Sullivan referred also to the Labour Court’s consistent position that the utilisation of an employer’s grievance procedure does not amount to reasonable cause for delaying the submission of a complaint[2].

The respondent’s position is that a complaint about the failure to enter the crime on the PULSE system before September 7th 2020 is outside the time limit.  On January 30th 2021, the complainant was informed of the DPP’s decision to prosecute, and any complaint about this matter is also outside the time limit.

The Burden of Proof

Mr O’Sullivan submitted that the complainant has failed to make out a “prima facie” case that she was discriminated against by the respondent.  To that end, he referred to the seminal decision of the Labour Court in Southern Health Board v Mitchell[3] where it was held that,

“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 those 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.”

Mr O’Sullivan referred to the decision of the Labour Court in Melbury Developments Limited v Arturs Valpeters[4], in which the Court expanded on what is required to establish the initial proof that discrimination has occurred:

“This requires that the 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 speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Response to the Claim of Discrimination

In his submission, Mr O’Sullivan summarised the respondent’s understanding of the complainant’s claims:

1.       Failure of AGS to record on the PULSE system her report of March 12th 2020, that she had been subjected to harassment by Sergeant Ring between August and September 2019.

2.       Failure to send the complainant a victim of crime letter, in line with the Victims’ Charter, in response to her report of a crime on March 12th 2020.

3.       Failure of AGS to refer the complainant to welfare services until September 9th 2020.

4.       Failure to inform her promptly when the DPP gave directions to prosecute Sergeant Ring on January 29th 2021.

5.       The advice contained in the letter from the CAO, Joseph Nugent, on June 24th 2022, that the PULSE systems is not to be used for personal enquiries. 

In his evidence, Superintendent Englishby said that he did not enter the details of the offence on the PULSE system in March 2020, not to protect Sergeant Ring, but because he wanted to protect the privacy of the complainant.  On September 7th 2020, when the complainant raised this as an issue, Superintendent Englishby entered the incident on PULSE.

Mr O’Sullivan said that, rather than ignore the complainant, on March 4th 2020, she was advised by Superintendent James O’Leary that she could make a criminal complaint, which she did on March 12th.  Mr O’Sullivan submitted that this demonstrates that the employer treated her report with the utmost seriousness.  On March 12th 2020, Superintendent Englishby told the complainant that because there was a criminal complaint in parallel to a disciplinary matter, the disciplinary investigation would be put in hold, pending the conclusion of the criminal proceedings.  In May 2020, Sergeant Karl Colgan took over the investigation from Superintendent Englishby and from then onwards, Sergeant Colgan liaised with the complainant and kept her informed about the progression of the court case.

On January 30th 2021, within 24 hours of Sergeant Colgan being informed of the DPP’s decision to prosecute Sergeant Ring, Sergeant Colgan told the complainant.

Mr O’Sullivan noted that the claim of discrimination submitted by Fórsa on behalf of the complainant is not about harassment by a member of AGS, but about the respondent’s alleged failure to provide the complainant with appropriate support after she reported a criminal offence.

At 12.36 on June 7th 2022, Mr Tosh Cowman of Fórsa wrote to the respondent’s chief administrative officer Mr Joseph Nugent to inform him that the complainant intended to send him a complaint about how she was treated in relation to the criminal investigation that commenced in March 2020.  A paragraph 3 of his email, Mr Cowman wrote:

“I am of the view, following a recent meeting with Olwyn, that there has been significant and alarming failings by the employer to provide the appropriate supports our member (sic) which need to be addressed.  I have now advised Olwyn to make a formal complaint directly to you as CAO and I can also advise that Forsa will be representing Olwyn in this process going forward.”

At 14.36 on the same day, the complainant sent her official complaint to Mr Nugent.  A copy was included in the respondent’s documents for the hearing.  The complainant summarised the timeline of events from August and September 2019, when Sergeant Ring sent her the sexually offensive Facebook messages, and January 30th 2021, when she was informed that the DPP intended to prosecute. 

Three days later, Mr Nugent met the complainant in Drogheda and told her that he would come back to her when he had a chance to consider her complaint.  On June 24th, he sent her a letter by email containing seven paragraphs, each of which may be summarised as follows:

Paragraph 1:  Mr Nugent referred to the complainant’s formal complaint dated June 7th and his meeting with her on June 10th.  He said that he carefully considered her correspondence which he said, “is multifaceted and yet does not necessarily lend itself to categorisation as a current workplace complaint.”

Paragraph 2:  Mr Nugent said that the circumstances described by the complainant “must serve as a source of critical learning for the organisation in terms of ensuring proper safeguarding measures are in place for all employees.”  To this end, he said that he sent a copy of the complaint to the HR department to assess the adequacy of the frameworks for managing HR complaints.

Paragraph 3:  As the complaint was about the management of a criminal investigation, Mr Nugent said that it was outside the scope of his responsibility.  He encouraged the complainant to speak with her divisional officer to formalise a complaint or to submit a grievance to the Garda Síochána Ombudsman Commission (GSOC).

Paragraph 4:  “In terms of broader learnings for the organisation,” Mr Nugent went on to say that the complaint “opens up the need for broader discussion and examination at senior management level concerning the unique position and circumstances of personnel employed by An Garda Síochána, and the need to balance employment obligations (both employee and employer obligations) with any legal rights and entitlements applicable in criminal matters (be it in role of victim, perpetrator, or witness).”  To this end, on November 15th 2022, Mr Nugent sent a redacted copy of the complaint to the Ms Kate Mulkerrins, the executive director of the Legal Department, to assess any policy gaps arising from where an employee has a HR complaint parallel to a criminal complaint as a member of the public. 

Paragraph 5:  This is the section of Mr Nugent’s letter about which the complainant has very specific concerns and it merits being repeated in full here:

“As employees of An Garda Síochána we sometimes have access to significant amounts of sensitive personal data which clearly gives rise to considerable obligations to maintain the integrity of that data.  Practically speaking, we must take great care that our Information Technology systems including PULSE, which are used to support our day to day operations, must only ever be used for legitimate business purposes, and never for personal enquiries.”

Paragraph 6:  Mr Nugent reminded the complainant of the support available to employees of AGS and the phone number of the independent counselling service.

Paragraph 7:  Mr Nugent thanked the complainant for bringing her complaint to his attention.

Mr Nugent copied his letter to the head of the HR directorate, and the assistant principal, people operations in the HR directorate. 

Considering paragraph 7 of the letter, Mr O’Sullivan submitted that the reference to how the PULSE system must be used was not an admonishment of the complainant, but a statement of Garda policy that applies to all AGS employees with access to PULSE.  Mr Nugent thought that it was prudent to include the advice in circumstances where the complainant had PULSE access privileges, while at the same time, she was a complainant in a criminal process.

Conclusion

Mr O’Sullivan submitted that, if I determine that the complainant has, on the basic facts, demonstrated that she was discriminated against, the respondent has rebutted that allegation because there were non-discriminatory reasons for the treatment that she complained about.

Mr O’Sullivan argued that any failure of AGS which is alleged is a complaint by the complainant as a member of the public and does not arise from her employment.  He submitted that the obligations that the complainant claims were owed to her were, at most, obligations owed to a member of the public reporting a crime.  He said that she was entitled to no difference in treatment compared to an ordinary member of the public.  Insofar as she claims that there was a deficiency in how she was treated, it was not by reason of her status as an employee.  It was open to the complainant to make a complaint to GSOC regarding how she was treated during the criminal process.

The respondent relies on s.15(3) of the Employment Equality Act 1998, under the heading, “Liability of employers and principals,” which provides that,

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee -

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.

The respondent has a robust dignity at work policy, a copy of which was included in the documents provided in advance of the hearing.  The complainant’s claims were dealt with in accordance with this policy. 

Finally, Mr O’Sullivan referred to s.14A(2) of the Act, which specifically addresses harassment and sexual harassment:

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable -

(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.

The Relevant Law

The Chief Administrative Officer, Joseph Nugent, wrote to the complainant on June 24th 2022 in response to her letter of June 4th, in which she complained about the respondent’s failure to provide her with welfare support after she reported a crime of harassment by a member of AGS.  The complainant claims that she was victimised in the section of Mr Nugent’s letter in which he reminded her that the PULSE system must not be used for personal enquiries. 

At s.74(2) of the Employment Equality Act 1998, “victimisation” is defined as:

… 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.

It’s clear from this definition that victimisation means dismissal or adverse treatment of an employee arising from their complaint of discrimination.  As set out in the decision of the former Equality Tribunal in Michelle Moriarty v Dúchas[5], a complainant is required to show that there is a connection between the complaint and the adverse treatment.  To prove her case, the complainant in the instant case must also demonstrate that there has been adverse treatment, that is, she must show that some harm was caused to her by the CAO’s direction concerning the use of the PULSE system.

Was the Complainant Victimised?

In her evidence, the complainant said that she has full access to the PULSE system, equivalent to the access permitted to a superintendent.  Her job is to ensure that each incident in her region is correctly recorded.  She said that she felt that Mr Nugent’s advice was “a rap on the knuckles” and an indication that he didn’t understand her job as a PAF administrator.  She interpreted his instructions as a challenge to her integrity and she claims that this is victimisation for making a complaint.

The complainant described her meeting with Mr Nugent on June 7th 2022 as friendly.  He asked her if she felt like resigning, which indicates to me that he understood that she must be despairing about what had happened.  In his letter of June 24th 2022, in response to the complainant’s letter to him on June 4th, Mr Nugent made the following points:

1.       Her complaint is “multifaceted and yet does not necessarily lend itself to categorisation as a current workplace complaint.”

2.       The organisation must learn from the circumstances and ensure safeguarding is in place for employees who reports crimes within the Gardaí.

3.       He advised the complainant that she could submit a complaint to her divisional officer or to GSOC.

4.       He said that the issues raised by the complainant needed to be examined in the context of how to balance the rights of employees with the legal entitlements that apply to victims, perpetrators or witnesses of crimes.

5.       He advised the complainant that the PULSE system is to be used for legitimate purposes and not for personal enquiries.

6.       He told the complainant how to avail of support and counselling.

Mr Nugent wasn’t called to give evidence and I must consider what was intended at point 5 above, in the context the entirety of his letter.  I must also consider the evidence of the witnesses at the hearing and I must make a reasonable assumption concerning what Mr Nugent’s intention might have been when he made the remarks about the use of PULSE.  It seems to me that, by advising the complainant that she could make a complaint to her divisional director or to GSOC, Mr Nugent understood the seriousness of the matters she had brought to his attention, and he had no issue with her escalating her complaints further.  By sending on her complaint to the head of the legal department and the senior people in HR, he wasn’t keeping it hidden.  This approach is not consistent with an intention to treat the complainant unfavourably or to punish her for making a complaint.

It was reasonable, in my view, for the complainant to interpret Mr Nugent’s instruction that PULSE was to be used for “legitimate business purposes,” as a response to an impression that she could use the system to make enquires about the case in which she had a personal interest.  It’s clear that Mr Nugent was making the point that, as a victim of a crime, albeit as a member of AGS with access to PULSE, the complainant should not use the system to check on the status of a criminal case in which she was a victim and a witness.  The complainant said that she interpreted this instruction as “a rap on the knuckles.” 

In the context of the letter as a whole, while I accept that the remark could be interpreted as a rebuke, I am satisfied that it was no more than that, and no adverse or harmful treatment ensued.

Conclusion

The complainant stated that the most recent date of discrimination was June 24th 2022 when she claims that she was victimised in the letter from Joseph Nugent.  I have reached the conclusion that the letter contained no element of victimisation, and I must find therefore, that her complaint about victimisation is without substance.

The events that led to the complainant writing to the CAO occurred more than 12 months before she submitted this complaint to the WRC and are outside the statutory time limit for which I have jurisdiction to conduct an investigation.  For completeness however, I wish to make some remarks about what occurred after the complainant reported a crime of harassment.

On March 12th 2020, when the complainant made a formal statement to the investigating officer about the conduct of Sergeant Ring, the Covid-19 pandemic was about to have an unprecedented impact on people and workplaces everywhere.  To manage the requirement for social distancing, the complainant moved from Ardee Garda Station to Collon, where she said she worked alone most of the time.  She wasn’t unique in working alone, but, what was unique was that she was the victim of a crime committed by a former colleague, and this must have caused her some distress.  The complainant heard that Sergeant Ring was visited by an inspector, in the form of a welfare call, and that he was advised about the employee welfare service.  From her perspective as an employee, no one asked her if she needed support.  Because the incident wasn’t uploaded onto PULSE until July, or perhaps September 2020, she wasn’t identified as a victim of a crime, and she didn’t receive the standard correspondence issued to victims. 

It seems to me that, if the complainant hadn’t moved from Ardee because of the outbreak of Covid-19, and, if normal working had been possible after March 12th 2020, she would have been provided with the support she requested.  I have reached this conclusion because, on September 7th 2020, following her meeting with Superintendent James O’Leary, action was taken and support was provided.  Some of this support was provided early on by Garda Karl Colgan who was appointed by Superintendent Gordon Englishby as the liaison Garda between the complainant and the investigating team.  In September 2020, she was contacted by Garda Cathal O’Toole from the employee welfare division.  It is unfortunate that detached working arrangements after the outbreak of Covid-19 inhibited normal communications across all workplaces and it seems to me that this was the cause of the complainant being isolated and unsupported.  As soon as she told Superintendent O’Leary that she was suffering, he did what he could to provide support, including arranging a move back to Drogheda.

I am satisfied that no issue arises from the 24-hour delay between Garda Colgan being informed about the DPP’s decision to prosecute Sergeant Ring and the complainant being informed.

I am satisfied that the complainant was not victimised in the remarks made by Joseph Nugent in the letter of June 22nd 2024.  I acknowledge that the conduct of the respondent between March and September 2020 wasn’t exemplary, but I am satisfied that, when the complainant asked for support, corrective action was taken and she received the support that that should have been provided sooner.

I have concluded that the complainant’s evidence is not sufficient to for me to presume that she was discriminated against on the ground of her gender and, for this reason, I decide that this complaint is not well founded.

Discrimination, gender, provision of welfare services