Complainant

Respondent

Parties

Samantha  Dwan

Carmichael Ireland

Representatives

Self-represented

Katie Ridge Adare Human Resource Management

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00067456-001

18/11/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness for the respondent undertook to give evidence under affirmation However, no evidence was provided by the respondent and no cross examination was availed of.

The complainant indicated that she had an autoimmune disease. She said that a statement was made by her manager about her physical appearance and that there was no need for those comments. She stated that she raised a grievance on 18 September 2024 regarding this matter and that ultimately, she agreed to mediation to resolve the matter. However, she left employment a couple of days later.

The complainant confirmed that the statement was only made on one occasion. While giving evidence the complainant confirmed that her grievance who is not made in relation to an equality complaint. She then clarified that she had never raised the issue of less favourable treatment on grounds of disability with the respondent. She further clarified that her line manager never made the statement to her but that she had read it as part of an investigation that the employer was conducting.

The respondent submitted that the complainant has not established facts from which discrimination may be inferred. The respondent submitted that a grievance was submitted by the complainant but not in relation to inequality matter. Arising from this the respondent asked the complainant whether she wanted it dealt with formally or informally to which the complainant replied that she wanted it dealt with informally. The complainant was offered the option of mediation and although she accepted it, she resigned three or four days later.

The respondent submitted that the complaint did not meet the burden of proof and any argument put forward by her amounted to ‘mere speculation’ as outlined in the Valpeters v Melbury Developments case.

The complainant took this complaint on the basis of disability indicating that she had an autoimmune disease. The respondent indicated that it had never been formally made aware that the complainant had an autoimmune disease, although it noted that it facilitated a number of medical appointments task the complainant looked for time off for.  From the evidence presented in relation to this case, I am not satisfied that the respondent was on notice of the existence of a disability.

The complainant gave her evidence but contradicted herself in relation to a number of matters: she stated that the comment regarding her physical appearance had been made to her but it transpired that she had seen it in the notes of an investigation and that it was never mentioned to her, and she also stated initially that she took a grievance in relation to the employment equality issue.  However, after it emerged that the grievance was not related to this matter she confirmed that she took no grievance in relation to the employment equality issues.

The respondent noted that the complainant possessed a HR qualification and had worked for the company for 20 years. It also noted that she would have developed a good working knowledge of the workings of the company and its grievance procedures during her employment.

Section 85A(1) of the Act, deals with the burden of proof and states as follows:

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.

Having regard to all the written and oral evidence presented in relation to this complaint, I find that the complainant has not established the facts from which discrimination may be inferred in relation to her.

Accordingly I find that he complaint has not established that the complaint is well founded or that the Act has been contravened.

Having considered all the written and oral evidence presented in relation to this matter, my decision is that the complainant has not been discriminated against.

Employment Equality – burden of proof not established – act not contravened – no discrimination