Complainant

Respondent

Parties

Ruth  O'Dowd

Diageo Ireland Limited

Representatives

 North Connacht and Ulster Citizens Information Centre

 IBEC

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-00064013-001

10/06/2024

The complaint was submitted to the Workplace Relations Commission (WRC) on 10th June 2024 and relates to allegations of discrimination on the disability ground. The cognisable period of the complaint is 11th December 2023 – 10th June 2024. The complainant alleges that within that period she was discriminated against when her internal grievance appeal process concluded on 14th May 2024. At the initial adjudication hearing on 29th August 2024, the matter was adjourned to allow supplemental submissions relating to the relevance of Labour Court Determinations EDA 177 Brothers of Charity Services Galway v Kieran O’Toole and EDA 1621 Mobile Security Services Limited v John McEvoy. These Determinations address the issue of initially choosing an internal grievance process over a statutory complaint to the WRC and the issues that then arise when complaints are subsequently referred to the WRC but found to be out of time. Supplemental submissions were lodged by both parties on this point and the adjudication hearing was reconvened on 29th April 2025.

Naming of the parties

There was no application to anonymise the parties to this decision and as such the parties are both named.

The complainant stated that the original complaint alleges discrimination on 14th May 2024 which was the date that the internal grievance process ended. The complainant’s representative argues in supplemental submissions that it was in fact the medical advice that the complainant received which resulted in the referral of the complaint in June 2024 and not awaiting the conclusion of the respondent’s internal grievance process. If that argument is not accepted, the complainant is seeking an extension of time so that the entire period of 11th June 2023 to 10th June 2024 can be considered. This period includes the discriminatory treatment of the complainant on 28th June 2023 when the complainant was required to undertake additional periods of coaching from senior management which arose as a direct result of issues relating to the complainant’s disability.

The complainant’s representative contends that the complainant has established reasonable cause in relation to her request to extend time.

The respondent stated that notwithstanding the fact that the complaint form alleges discrimination occurring on 14th May 2024, the complaint has, in fact, been absent on sick leave since July 2023 and remains absent on sick leave to date. The respondent notes that there was no notification of a disability until November 2023 which post dates the commencement of the complainant’s sick leave.

Furthermore, the respondent strongly refutes the argument put forward by the complainant’s representative that the medical advice received by the complainant resulted in her not referring her complaint between July 2023 and May 2024. On this point the respondent stated that, at the adjudication hearing on 29th August 2024, it was confirmed by the complainant’s representative that the ongoing internal grievance process was the reason the complaint was not lodged until 10th June 2024. The respondent representative contends that to suggest otherwise in supplemental submissions is factually incorrect and disingenuous.

In conclusion, the respondent argues that the complaint is out of time and statute barred given that it was the conclusion of the internal grievance process that was cited as the discriminatory treatment within the cognisable period of the complaint and the relevant Labour Court Determinations address this issue in terms of complying with statutory time limits.

The complaint alleges discrimination on the grounds of disability. The initial complaint alleges discrimination on 14th May 2024. Supplemental submissions suggest discriminatory treatment on the 28th June 2023 and a request to extend time.

The Applicable Law

Discrimination

Sections 6 (1) and (2) of the Employment Equality Act, 1998 at relevant parts state:

6.(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,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.

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

(a) - (f) not relevant…… 

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

Burden of Proof

Section 85A of the Employment Equality Act 1998 provides as follows:

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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission] under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

Time Limits

Section 77(5)(a) and (b) of the Employment Equality Act, 1998 provides as follows:

77(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

Extension of Time – Reasonable cause

The complainant is seeking an extension of time so that the period 11th June 2023 – 10th June 2024 is reckonable for the purposes of the adjudication process.

The test for establishing if reasonable cause is shown for the purpose of granting an extension of time is that formulated in Labour Court Determination No: DWT0338 –Cementation Skanska and Carroll which states as follows: -

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.

Relevant Labour Court Determinations

Labour Court Determination No:EDA177 Brothers of Charity Services Galway v Kieran O’Toole held that:

“the Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limits provided under the Act.

Section 77 of the Act is very clear, it specifies that a person who claims to have been discriminated against may seek redress by referring the case to the WRC, such a complaint should be in writing and submitted within the time limits provided for in Section 77(5).”

I also note Labour Court Determination No: EDA1621 Business Mobile Security Services Ltd T/A Seneca Ltd v John McEvoy in relation to utilising internal grievance procedures which states:

“The Court finds that in the particular circumstances of this case the Complainant made a choice and must take the consequences of that choice. He chose not to pursue a complaint under the Act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction.

The Court finds that such a decision cannot justify the delay in bringing proceedings under the Act and accordingly determines that the complaint is statute barred.

The Complainant, in the alternative sought an extension of time. He relies on the same arguments as set out above and in addition submits that he meets the tests set out by the Court in the settled case law. In particular he submits that he has explained reason for the delay and submits that it was commensurate with the duration of the grievance procedure. He submits that he acted immediately after the outcome of the process was available to him.

The Respondent submits that the Complainant is effectively seeking to second guess his decision not to proceed through the statutory procedures available to him and that his delay no more justifies an extension of time that it did the delay itself.

For the reasons set out above the Court finds that the Complainant opted not to present a complaint under the Act and belatedly changed his mind when his chosen alternative course of action did not avail him. The Court finds, in the circumstances of this case, that the Complainant has not set out reasons such that would justify the delay in bringing proceedings under the Act. Accordingly, the Court rejects the application to extend time.”

Conclusions

I have considered the submissions of the parties on the time limit issue and the request of the complainant’s representative to extend time by a further six months to 11th June 2023. I note that the complainant’s representative stated that the advice of the complainant’s psychologist, which was confirmed in writing after the initial adjudication hearing had taken place. The advice was that the complainant should not refer the complaint to the WRC during the period of July 2023 - May 2024 as this would increase her stress levels and cause further difficulties in relation to her health during that time. It is unfortunate that this advice has resulted in the complaint relating to the 28th June 2023 being referred outside of the statutory time limit and where the psychologist may not have been aware of the importance of same. I fully accept the personal difficulties experienced by the complainant during this time and empathise with her in that regard, however, I also note that the complainant was engaging in the grievance process from November 2023 when her complaints would have been in time. It is on that basis that I believe that the complainant chose the internal grievance route and in my view the Labour Court Determinations EDA 177 Brothers of Charity Services Galway v Kieran O’Toole and EDA 1621 Mobile Security Services Limited v John McEvoy apply to the circumstances of this case and the initial referral of same.

In relation to the application to extend time, I do not grant the extension on the basis that if the complainant was engaging in the grievance process from November 2023 onwards, she could also have submitted a complaint to the WRC within the statutory time limit. I find that that the reason put forward by the complainant relating to the medical advice she received does not satisfy the test in establishing “reasonable cause” as it does not both explain and offer an excuse for the late referral of the complaint. Accordingly, I find that the complaint is out of time.

For the reasons stated above, I find that the complaint is out of time.

Complaint out of time