Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Representatives

  Self-Represented

 The Corporate Employee Relations Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act 1998

CA-00069165-001

10/02/2025

On the 10th February 2025 the Complainant referred a complaint to the WRC wherein she claimed that she was subjected to discriminatory treatment by the Respondent. At the hearing on the 12th May 2025 the Complainant confirmed that the discriminatory treatment was on the grounds of her race. The Respondent denied that the Complainant was treated in a discriminatory manner or in a manner which contravened the provisions of the Employment Equality Acts 1998 (as amended).

Direct Evidence of the Complainant

The Complainant was not represented and made her own case. She relied on the narrative as outlined in the WRC Complaint Form and she provided a number of submissions together with  supplemental documentary evidence in support of her case. She submitted a full hearing presentation script on the morning of the hearing on the 11th July 2025 which was copied to the Respondent. No objection was raised to the Complainant reading from the presentation script in the making of her case. The evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative.

By way of overview, she stated that in August 2024 she was appointed interim XXX Manager through a formal expression of interest and internal skills match interview process conducted by her line manager Mr. B and another senior colleague. She led the largest pillar in the team and supervised 12 staff members under high pressure.

When the permanent XXX Manager role was advertised she applied in good faith. She submitted evidence of her regulatory body registration application which was the eligibility criteria stated in the campaign brief. Despite this she was not initially shortlisted. The reason given was that she was allegedly not eligible for registration with the regulatory body and she was asked to provide a letter from the regulatory body confirming her application would be approved.

She complied and sent the Respondent every document the regulatory body had given her. She stated that no clarification was sought and she was denied access to the recruitment process. Other candidates were shortlisted and called for interview while she was still forced to justify her eligibility. Only after she challenged this was she granted an interview which was only confirmed 48 hours before it was due to take place.

Later she discovered that the successful candidate did not hold the correct registration at the time of shortlisting but instead held registration for a different profession. She discovered internal emails where her line manager raised concerns about her exclusion from the recruitment process stating she had qualifications and was eligible.

The internal review that followed confirmed that the Respondent’s request for a letter from the regulatory body was excessive.

The Complainant’s legal and procedural arguments were that:

- Inconsistent eligibility enforcement: she had the regulatory body registration; another candidate with a different registration was shortlisted.

- Selective document requests: she was asked for a regulatory body letter; others were not.

- Denied fair interview prep time: she received only 48 hours' notice.

- No clarification offered: despite her line manager raising concerns internally, nothing was done.

She set out the personal and professional impact on her as follows:

- During interim role, she emailed Mr. B twice asking for support and acting-up pay — no reply.

- In January 2025, she stepped down from the interim XXX Manager role down due to burnout. The role remained unfilled for 5 months.

- She returned to work back to her assigned role as an XXX Worker on the team.

- When the successful candidate came into the post of XXX Manager in April 2025 the Complainant had to work under the individual, the individual having placed on the panel above her despite not meeting the criteria at the time of shortlisting.

- She went on certified stress-related sick leave in May/June 2025 for 6 weeks. She accessed occupational health consultant and a report was released advising work place risk assessment prior to her returning to work. She asked for a neutral facilitator for the risk assessment as her current line manager is the successful candidate from the same disputed recruitment process who is central to this complaint. Moreover, her line manager is also supervising her spouse who is in the same team which raises conflict of interest. She asked for a psychologically safe space to discuss risks and return to work but this request was challenged.

By way of remedies the Complainant sought compensation for the harm suffered by her, a written acknowledgment of procedural failure, unfair treatment and harm caused and a recommendation that the Respondent strengthen its internal recruitment oversight, eligibility checks, and anti-bias protections.

In closing the Complainant stated that she was not asking for a guaranteed job but a fair and equal opportunity to compete. She met the eligibility criteria, she submitted the necessary documentation, she acted in the role with integrity under intense pressure and yet she was excluded, delayed, and scrutinised while another candidate who did not meet the stated criteria was accommodated and later appointed. She stated that she was left to carry the consequences alone professionally, emotionally and in her health. She stated that she was asking for recognition of the harm caused, of the mistakes made and of the fact that what happened to her should not have happened.

Cross-Examination of the Complainant

Under cross-examination the Complainant stated that the main barrier put in place to her being called for interview was the requirement to give the additional letter from the regulatory body.

The Complainant confirmed that the Respondent acknowledged that an administrative error had been made when she was incorrectly asked to provide additional information from the regulatory body and that the Respondent acknowledged the error in sufficient time for her to be called for interview for the post of XXX Manager.  

The Complainant was not aware that another candidate had been asked to provide the same additional letter from the regulatory body, but she said that the fact that there was another candidate in the same position as her was incidental as it was a barrier which prevented her from being called to interview and amounted to discrimination on the grounds of race. 

When it was put to the Complainant that the error was purely administrative in nature and was not because of the Complainant’s race the Complainant stated that her name was not a typical European/Irish sounding name and that it was her case that she was required to provide the additional letter because of her name.

When it was put to the Complainant that the name of the other candidate encompassed by the administrative error and who was subjected to the same treatment as the Complainant was a European/Irish sounding name she stated that the treatment she was subjected to was less favourable than someone with a European/Irish sounding name.

The Complainant stated that the requirement to provide the additional letter was excessive for no reason and given there was no other reason proffered by the Respondent other than “an administrative error” she could not rule out discrimination because all the Respondent’s recruitment staff could see on the application form was her name.

The Complainant stated that she did not accept that the administrative error had been corrected by the Respondent.

Whilst the Complainant stated that she was disadvantages when she was asked to provide a letter from the regulatory body, she accepted that within six days the administrative error was rectified, and she was called for interview and did interview for the position of XXX Manager.

She stated that she had to fight through the recruitment process and had to jump through hoops to get an interview. Subsequently she lodged a review with the Respondent which the Complainant accepted acknowledged the error, but she again maintained that the error was never corrected. She reached out to the manager who had conducted the review and asked for the recruitment campaign to be re-run, but her request was refused. 

She stated that the Respondent repeatedly used the phrase “administrative error” but there was a human behind the administrative error and a human effect on the candidates.

Direct Examination of Mr. A

Mr. A was questioned by the Complainant. Mr. A confirmed that he was involved in the recruitment campaign for the role of XXX Manager.

He stated that another employee, Employee X, did the initial assessment of eligibility and that two candidates, including the Complainant, were deemed ineligible.

On the 13th September 2024 Mr. A was contacted by Employee X who advised him that the Complainant wanted to appeal the decision to deem her ineligible because she was not called for interview. Mr. A attempted to call the Complainant on the 13th September 2024 but could not contact her, so he sent her an email explaining how her application had been assessed. 

Mr. A re-assessed the two ineligible candidates in accordance with the Candidate Information Pack but again the Complainant came back to dispute her ineligibility.

Mr. A sought advice from a superior in the Respondent’s recruiting department who advised that the Complainant and the other candidate qualified based on experience.  Having received that advice Mr. A contacted the Complainant straight away and explained the situation to her. He informed the Complainant that due to an administrative error she was initially deemed ineligible, but that advice had been sought and that she was eligible and would be called for interview. He asked the Complainant when the following week would be suitable for her, and she said Thursday. He explained on the call that he had to confirm with the Interview Board that they could facilitate the Complainant on the Thursday afternoon, but her interview would be put in provisionally for that day and that following the call he would send her all the details she needed to prepare for the interview, which he duly did.

Another individual within the Respondent, Employee Y, was arranging the interviews for the other candidates so Mr. A contacted Employee Y who then got in touch with the Interview Board. As soon as there was confirmation that a chairperson could sit with the Interview Board on the Thursday afternoon the interview day and time were formally confirmed with the Complainant. Mr. A stated that the interview was always going to be on the Thursday afternoon as requested by the Complainant, but the specific time needed to be confirmed.

Mr. A acknowledged to the Complainant that she was initially deemed ineligible by mistake, and he stated that at all material times he felt that the Complainant was happy with the explanations given to her. He had no awareness that she was upset about the situation she found herself in. At no time did the Complainant make a complaint of discrimination to him. On Friday 20th September 2024 he made sure the Complainant received all the necessary information to allow her to prepare for the interview the following week.

Once Employee Y confirmed to Mr. A the time the Interview Board could sit on the Thursday afternoon Employee Y finalised everything from that point onwards and Mr. A had no further involvement in the recruitment process or with the Complainant.

Mr. A denied that the tone of the email correspondence between employees of the Respondent and the emails sent to the Complainant were dismissive or that a lot of assumptions had been made about her qualifications and eligibility.

Mr. A stated that it was acknowledged by the Respondent to the Complainant that errors were made in the eligibility process and that this had been explained to the Complainant during the telephone call on the 20th September 2024. The Respondent did its best to accommodate the Complainant with an interview day and time that suited her. The necessary corrections were made to allow the Complainant to be to be put forward for interview, she was put forward for interview on a day and at a time that suited her, and she attended for interview for the XXX Manager role.

When it was put to Mr. A that the treatment the Complainant was subjected to resulted in her not being shortlisted Mr. A confirmed that the Respondent did not shortlist any candidates. He reiterated that all candidates went through the eligibility process and that if a candidate was deemed eligible, they were put forward for interview. At the beginning of the process two candidates, one of whom was the Complainant, were deemed ineligible to be put forward for interview. The eligibility was done incorrectly initially, that was corrected, and he did as much as possible to facilitate the Complainant’s interview at a day and time that was convenient for her.

Whilst Mr. A acknowledged that the Complainant was not given final confirmation of the interview day and time until Tuesday 24th September 2024 he stated that all the necessary information to afford her the opportunity to prepare for the interview was given to her on Friday 20th September 2024.

Mr. A stated that he was transparent with the Complainant throughout the recruitment process as to why and how the administrative error was made and at no stage did she complain of discriminatory treatment.

Direct Examination of Mr. B

Mr. B was questioned by the Complainant. He confirmed that he was the Complainant’s manager.

Mr. B stated that in August 2024 an expression of interest for the interim XXX Manager role was circulated internally when the previous manager moved due to a promotion. It was agreed that an expression of intertest would be sent out to the entire XXX team to see if any individual was interested in acting in that role on an interim basis and that if more than one person expressed an interest there would be a skills matching process. Mr. B was not aware at the time of the interview for the interim XXX Manager role what the Complainant’s qualifications were or whether she was registered with the regulatory body. There was an immediate need for an interim XXX Manager, so Mr. B sought advice from his manager on how to proceed with filing the role.

He was not involved in the preparation of the Candidate Information Pack, the processing of applications or the assessment eligibility. He was one of the three people who sat on the interview panel for the post of XXX Manager. It was only after the assessment of eligibility that he became aware of which candidates were attending for interview.

Mr. B was aware that the Complainant had applied for the XXX Manager role, and he was in support of her interviewing for the permanent role. He was surprised to learn of her failure to make the panel to be interviewed. He escalated matters on her behalf with the recruitment team and within his own service to ensure that the Complainant was offered an interview. Throughout the process he understood that the difficulties were with grandfathering and getting information from the regulatory body, but he believed that matters were satisfactorily resolved on the 20th September 2024 when Mr. A engaged with the Complainant as the Complainant informed Mr. B on the 20th September 2024 that she was being called for interview.

Mr. B stated that the hearing before the WRC was the first time he had heard that the Complainant believed she was not called for interview because of her race and her name. The Complainant had spoken to him regarding her application and had kept him fully informed of what was going on and if he was contacting anyone on her behalf, he kept her informed. The conversations back and forth with the Complainant related to the information from the regulatory body that was being requested in order for her to be called for interview and the inability of the Complainant to get that information from the regulatory body.

Mr. B was not aware that another individual was experiencing the same difficulties as the Complainant. He stated that his focus was advocating on behalf of the Complainant.

Cross-Examination of Mr. B

Under cross-examination Mr. B stated that no issues of discrimination were raised with him by the Complainant, and he made no representations on her behalf regarding discriminatory treatment. The support that was given by him to the Complainant was solely in relation to grandparenting and the Complainant’s registration with the regulatory body.

Mr. B confirmed that after the Complainant stepped down from the interim role in January 2025 the role of XXX Manager was vacant for a number of months and that the reason for the delay in filing the vacancy was because the successful candidate needed to regularise her regulatory body registration. Employee X did the initial eligibility, and it was not brought to his attention that the successful candidate did not have the correct registration with the regulatory body until after the recruitment process had been completed. The Complainant did not raise this issue until she lodged her review in January 2025.

The XXX Manager’s post became vacant on the 1st August 2024. The Complainant applied for this position on the 7th August 2024. Following an expression of interest, the Complainant was assigned to the role of interim XXX Manager on the 26th August 2024 pending the permanent appointment to the role. The Complainant stepped down from this interim appointment effective from the start of January 2025. The Complainant’s interview for the permanent XXX Manager position was held on the 26th September 2024 and she came fourth on the panel.

The Respondent addressed each of the Complainant’s complaints in turn.

A) The Complainant submitted her complaint under section 86 of the Employment Equality Act 1998 and submitted that she was the subject of discriminatory/unfair treatment.

The Respondent denied that the Complainant was the subject of discriminatory or unfair treatment. The Respondents representative referred to section 6(1) of the Employment Equality Act 1998 and to the fact that the burden of proof is on the Complainant to prove that she was the subject of subjected to discriminatory treatment because of her race. The Respondent referred to the three elements of the test laid down in Minaguchi v. Mr. Ray Byrne t/a Wineport Lakeshore Restaurant DEC-E/2002/20. The Respondent submitted that the Complainant failed to submit clear evidence which established that she was treated less favourably than a fellow applicant who was not covered by the same ground for the position of XXX Manager in relation to a discriminatory ground.

B) The Complainant submitted that she was put under unnecessary pressure to provide a letter of registration from the regulatory body.

The Respondent acknowledged that the Complainant was asked in error by the Respondent’s recruitment team to provide proof that her application to the regulatory body would be approved. At this stage of the process proof of application for registration alone was sufficient and there should have been no further information requested from the Complainant. The error involved some candidates, including the Complainant, being incorrectly asked to provide additional information while other candidates were not. The Respondent's representative explained that this arose from a purely administrative error due to the newness of the regulatory body registration process and not from any intent to treat the Complainant differently and that the error was also rectified transparently once it was identified. Corrective action was quickly implemented, and the Respondent’s recruitment team was provided with additional training on the regulatory body’s registration process and its requirements, to ensure consistency and fairness going forward.

The Respondent submitted that overall there was no substantive impact from the administrative error on the Complainant as it was rectified at the time it occurred. The Complainant was invited to interview for the position and given the same opportunity as the other candidates. The error was rectified and the Complainant was notified of this and her eligibility for interview on the 20th September 2024 six days before her interview was then held.

The Respondent noted that as part of the Complainant's original complaint to the WRC she made no reference as to how the error made as part of the eligibility process amounted to discriminatory treatment under the Employment Equality Act 1998 or which ground it related to. In her subsequent submission to the WRC the Complainant stated "I experienced what I believe to be unconscious racial bias. I have a non-European name, while other candidates shortlisted had typically Irish names” and that she was “… scrutinised more harshly, and my eligibility was more rigidly interpreted, than others. I felt that my identity, background and name influence how my application was handled”.

Another candidate was encompassed by the administrative error and was subject to the same request from the Respondent’s recruitment team to provide further proof that their regulatory body application for registration would be approved. This other candidate has a European/Irish sounding name.

The Respondent rebutted the Complainant’s complaint of unconscious bias and that she was subjected to a more rigidly applied eligibility criteria process on the basis that the error also encompassed a candidate that has a European/Irish sounding name and who is therefore not covered by the same protected ground as the Complainant. The Respondent further submitted that this reflected that the error made was purely administrative in nature. The error with the other candidate’s eligibility was brought to their attention in the same manner as applied to the Complainant, and this candidate was also subsequently invited to interview. The invite issued on the same date as the Complainant, this candidate was given the same interview notice as the Complainant and the candidate also interviewed on the same day as the Complainant. The Respondent submitted this reflects that no discriminatory treatment occurred.

The Complainant stated that the other candidates shortlisted had typically Irish names and that she was treated differently on this basis. The Respondent stated that this was factually incorrect. In addition to the Complainant a total of 6 other employees were deemed eligible for interview and these candidates included another individual with a non-European/Irish sounding name. The Respondent submitted that by virtue of the fact that another candidate with a non-European/Irish sounding name was deemed eligible for interview the Complainant's claim of unconscious racial bias and that her identity, background and name influenced the recruitment process is rebutted. The Respondent submitted that the Complainant failed to raise a prima facie case of discrimination under this element of her original complaint.

C) The Complainant submitted that she was not given a minimum of seven days prior to her interview

After the eligibility error was identified and rectified Mr. A spoke to the Complainant on the 20th September 2024 over the phone and they discussed her availability for interview. The Complainant informed him that she was available on the 26th September 2024 in the afternoon. Mr. A acknowledged her requested date and informed the Complainant that this date had been provisionally held pending confirmation of the availability of the interview board. Pending the final confirmation of the interview date, on the 20th September 2024, after their phone call, Mr. A issued the Complainant with an “invitation to interview” email. This email included all the standard information and preparatory materials that the Respondent’s recruitment team issued to candidates that were formally invited to an interview. Within the “invitation to interview” email it was noted, in line with Mr. A and the Complainant’s phone call, that the interview date was to be confirmed.

Mr. A contacted the Complainant on the 24th September 2024 to confirm that the interview would go ahead on the 26th September 2024 as she had requested.

Although the interview date was not confirmed until two days prior there was no barrier to the Complainant beginning her interview preparation on the 20th September 2024 when she was provided with all the necessary preparatory materials. The Respondent’s recruitment team endeavours to provide candidates with five to seven days to prepare for an interview and only in exceptional circumstances will an employee be given an interview in less time. There was no indication given to the Complainant during her phone call with Mr. A that the interview date that she had requested would change substantially given that no exceptional circumstances applied.

Within her original complaint to the WRC the Complainant stated that she had no grievance in relation to how the interview was conducted or her position on the panel and she acknowledged that her position on the panel was due to her performance on the day and the scoring. In her subsequent submission to the WRC, however, the Complainant went on to state that her emotional state and interview performance were severely affected due to the final confirmation of her interview being received on the 26th September 2025 which is contradictory. The decision to delay the preparation until final confirmation of the interview date was received was a personal choice on behalf of the Complainant. The Respondent submitted that the onus was on the Complainant to manage her preparation time appropriately. She was given a reasonable and a fair opportunity to begin her interview preparation from the 20th September 2024 while awaiting final confirmation of the interview date from Mr. A. The Respondent submitted that the time frame provided to her was adequate, adhered to best practise, and was in line with the standard preparation time allocated to candidates. Furthermore, the Respondent’s recruitment team provided her with flexibility by way of facilitating her with her chosen interview date.

Within the Complainant’s submission to the WRC the Complainant referred to a shortlisting process for interview as being discriminatory. The Respondent denied that candidates were short listed and submitted that the Complainant did not establish how this aspect amounted to discriminatory treatment under the Employment Equality Act 1998 or which ground it related to. The Complainant provided no evidence of comparable treatment whereby another candidate who is not covered by the same ground was treated more favourably in terms of preparation time for interview. Contrary to the Complainant’s assertions another candidate was encompassed by the error. The error with this candidate’s eligibility was brought to their attention and they were subsequently invited to interview. This invite issued on the same date as the Complainant, namely the 24th September 2024 and they were given the same interview notice as the Complainant. This again reflected that no discriminatory treatment occurred. The Respondent submitted that by virtue of the fact that this employee was not covered by the same ground as the Complainant but was also encompassed by the same error and given the same amount of preparation time and interview date the Complainant’s claim of unconscious racial bias is rebutted. The Respondent submitted that the Complainant failed to raise a prima facie case of discrimination under this element of her complaint.

D) The Complainant submitted that the candidate who was successful in obtaining the permanent XXX Manager position did not have the correct regulatory body registration

The Complainant submitted that as part of her role as interim XXX Manager she learned that the successful candidate had not applied for or registered for the correct regulatory body registration. It was accepted by the Respondent that errors occurred during the eligibility assessment stage in relation to the campaign for XXX Manager role. Some candidates including the Complainant were incorrectly asked to provide additional information while other candidates were not. The Respondent’s representative confirmed that the candidate who came first on the panel had not included the correct registration number on their application for the position of XXX Manager. The Respondent acknowledged that this candidate should have been required to include proof of the correct registration on their application and that this issue was included in the training provided at the time as corrective measures.

It was explained to the Complainant via the formal review which was conducted by the Respondent’s National Recruitment Operations Manager and the Head of Recruitment and Talent that the appointment of the candidate to the role would be conditional on them providing proof of their regulatory body registration during their pre-employment screening and onboarding. If the candidate was unable to provide such proof at that stage the offered position would be withdrawn as appropriate. On the 16th April 2025, after successfully providing proof of their regulatory body registration, the candidate was then formally offered the position and contract of XXX Manager.

The Respondent’s representative stated that for context the position of XXX Manager is an established position that supports 13 Workers. The role of XXX Manager became vacant on the 1st August 2024. Owing to the critical needs and the support required to the Workers an interim appointment was progressed pending the permanent filling of the position. The Respondent’s representative stated that this was not something that always happens when a post becomes vacant, however, given the demands and a complaint received from the XXX team a temporary appointment was progressed on that basis.

The Complainant was temporarily appointed to the interim position but stepped down from the post from January 2025. During the period January to April 2025 the interim supervision reporting relationships were identified however a number of staff voiced their dissatisfaction with these protocols owing to the fact that the proposed interim supervisors were not of the same discipline or familiar with the relevant service. The Complainant formed part of this group and as such she acknowledged the need for this position to be filled as soon as possible and the critical service needs that existed.

The Respondent acknowledged that the Complainant then requested that any appointment to the position of XXX Manager be suspended pending the outcome of her complaints to the WRC and this was given due consideration by the Respondent however the Respondent was not in position given the critical service needs and the complaint received from the relevant team to suspend the recruitment process. Also given that the Respondent felt that the recruitment and selection process was managed appropriately the appointment of the candidate who came first in the panel was progressed.

The Respondent submitted that the fact that the candidate who came first in the panel had not applied for, was not registered, or did not have the correct registration did not reflect discriminatory treatment on the Complainant but rather a purely administrative error which was acknowledged in a transparent manner at the time. The Complainant referred to the recruitment and eligibility process as being a gravely unfair process due to the error that occurred in terms of the eligibility criteria however this did not amount to a case of discrimination. Furthermore, the error encompassed another employee further reinforcing that this was purely administrative in nature. The Respondent therefore submitted that the Complainant failed to raise a prima facie case of discrimination under this element of her complaint.

In conclusion the Respondent submitted that the Complainant failed to establish a prima facie case of discriminatory treatment in all elements of her complaint in relation to her application to the position of XXX Manager and the requirement to provide a letter from the regulatory body. The error that occurred as part of the eligibility stage of the recruitment process was purely administrative given the newness of the application/registration process. The Respondent acknowledged this error at the time and it was dealt with it transparently. Training was provided at the time to the Respondent’s recruitment team to ensure consistent application going forward and to ensure no further errors like this occurred. The Complainant was not the only candidate affected by the error. The other candidate affected by the error had a European/Irish sounding name.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

Discrimination for the purposes of this Act

Section 6 (1) of the Employment Equality Acts 1998 (as amended) (hereinafter referred to as “the 1998 Act”) states:

For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated.

Section 6 (2) provides that: as between any two persons, the discriminatory grounds are inter alia:

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

The Cognisable Period for the purposes of this Act

Section 77(5) of the 1998 Act states:

(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.

 (c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

The Complainant referred a complaint to the WRC on the 10th February 2025 at 11:35:07 under the 1998 Act wherein she claimed that an employment agreement contained a provision which was discriminatory. In the narrative on the complaint form she set out that she believed that she was treated unfairly throughout the recruitment process of the XXX Managerial position. She did not state any discriminatory ground and she did not state the date of occurrence of discrimination or the date of its most recent occurrence. At the commencement of the hearing on the 12th May 2025 the Complainant confirmed that she was claiming discrimination on the race ground on the basis that she has a non-European/Irish sounding name and that she was subjected to discriminatory treatment in the recruitment process leading up to the interview for the post of XXX Manager but not in respect of the interview itself or the events subsequent to the interview. The Complainant confirmed that her interview took place on the 26th September 2024.

The Burden of Proof

Section 85A of the 1998 Act 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.”

The effect of section 85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.

The WRC and the Labour Court’s approach to this issue and the test for applying section 85A of the 1998 Act is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v. Southern Health Board [2001] 12 E.L.R. 201 wherein the Labour Court stated:

“the 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 where 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.”

The Respondent referred to the case of Minaguchi v. Wineport Lakeshore Restaurant No. EDA034 wherein “the primary facts” were defined as follows:

“It appears to me that the three key elements which need to be established by a claimant to show that a prima facie case exists are:

that she/he is covered by the relevant discriminatory ground(s)

that she/he has been subjected to specific treatment and

that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.

In Mary Margetts v. Graham Anthony & Company Limited EDA038 the Labour Court stated that “[t]he mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Labour Court, in its decision in Arturs Valpeters v. Melbury Developments Ltd [2010] 21 E.L.R. 64, addressed the onerous nature of the burden of proof:

“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.”

The Labour Court has also consistently stated that:

“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”: Kieran McCarthy v. Cork City Council EDA082

The Complainant bears the burden of proof in establishing facts from which an inference of discrimination can be drawn. If the Complainant establishes a prima facia case of discrimination, the burden of proof shifts to the Respondent to rebut the prima facie case. This will require cogent evidence. In accordance with case law cited above to succeed in a complaint of discrimination the Complainant must establish that she comes within one of the discriminatory grounds, namely the race ground, that she was subjected to specific treatment and that the treatment was less favourable than someone not covered by the discriminatory ground.

Whilst a number of submissions were made by the Complainant relating to unfair treatment and procedural unfairness, which the Respondent addressed in turn, in response to questions from the Adjudication Officer the Complainant confirmed that her complaint under the 1998 Act was that she was subjected to discriminatory treatment by the Respondent on the grounds of her race because she has a non-European/Irish sounding name when she was required to provide an additional letter from the regulatory body as part of her application for the permanent position of XXX Manager when other candidates were not required to do so. She stated that this request amounted to discrimination and potential unconscious bias. The Respondent denied that the Complainant was treated in a discriminatory manner or in a manner which contravened the provisions of the 1998 Act.

Taking into consideration the case law referred to above and having regard to the evidence presented at the hearing summarised above I find that whilst the Complainant has not demonstrated sufficient facts and there was no relevant evidence presented by her from which it may be inferred on the balance of probabilities that the Respondent discriminated against her on the race ground, and in particular because she has a non-European/Irish sounding name.

As highlighted in the Valpeters decision:

“the Complainant must first establish facts from which discrimination may be inferred” and such facts must “be of sufficient significance to raise a presumption of discrimination.”

Crucially, the decision also highlights that these “must be established as facts on credible evidence. Mere speculations or assertions, unsupported by evidence, cannot be elevated to factual basis upon which inference of discrimination can be drawn.”

The Complainant’s mere speculation and assertions that the requirement to furnish an additional letter from the regulatory body as part of her application for the position of XXX Manager was because she had a non-European/Irish sounding name was unsupported by credible evidence.

Witnesses called by the Complainant to give evidence on her behalf gave credible evidence that the Complainant and another candidate were asked in error by the Respondent’s recruitment team to provide proof that their applications with the regulatory body would be approved and that this error occurred as part of the eligibility stage of the recruitment process. The witnesses gave evidence that the error was purely administrative given the newness of the application / registration process, the error was acknowledged at the time and was dealt with transparently and another candidate with a European/Irish sounding name was also encompassed by the error and subjected to the same treatment as the Complainant.

The Complainant accepted in evidence that whilst she was initially informed that she was not eligible to be put forward for interview for the position of XXX Manager, she appealed the decision and was informed on the 20th September 2024 by Mr. A that an administrative error had occurred and that she was in fact eligible for interview, that she was facilitated with an interview date of her choice and that she attended for interview for the post of XXX Manager on the 26th September 2024.

Taking into consideration the evidence of the parties, the documentation submitted to the WRC and the oral and written submissions I find that whilst the Complainant comes within a relevant ground, namely the race ground on the basis that she has a non-European/Irish sounding name and that she was subjected to specific treatment, namely that she was asked by the Respondent’s recruitment team to provide additional information from the regulatory body confirming that her application would be approved, which the Respondent described as being an administrative error, the Complainant was not the only candidate affected by this administrative error. The other candidate affected by the error had a European/Irish sounding name and was subjected to the same treatment as the Complainant. Consequently, the Complainant has failed to establish that the treatment she was subjected to was less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated. Therefore, I find that the Complainant has not discharged the burden of proof in relation to her complaint of discrimination on the race ground and has therefore not established a prima facie case of discrimination.

As I have found that the Complainant has failed to establish a prima facie case of discrimination, I decide that her complaint is not well-founded.