Complainant

Respondent

Parties

Breda  Wimsey

Abbvie

Complainant

Respondent

Anonymised Parties

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Representatives

  Complainant

Emer Murphy A&L Goodbody LLP

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-00067416-001

15/11/2024

The complainant, Ms Breda Wimsey alleges discrimination on the grounds of disability.  The respondent raised the preliminary issue regarding the incorrect legal entity being named by the complainant in her complaint.  Arguments relating to this point were presented at a hearing to me.  I adjourned the hearing in order to allow further submissions to be made in writing.  I considered these submissions in reaching my decision.

Preliminary Issue

The respondent has argued that Abbvie is not the complainant’s employer and in fact that the correct employer is Abbvie Ireland N.L.B.V. There is a Confidentiality Agreement which is contained within the Complainants contract of employment. Within this Confidentiality Agreement AbbVie NL B.V is referred to as AbbVie.  Abbvie is mentioned 28 times in this Confidentiality Agreement.  Abbvie is presented as the company name and/or AbbVie logo on official documents including;

·       Appears as letterheads within the Respondents submission.

·       Within Job Description AbbVie is referred to on eight occasions within the document as well as being outlined in the document footer within the Respondents submission.

·       Abbvie appears in the Header and Footer of the AbbVie Ireland Sick Pay Policy and within the document 17 times.

·       AbbVie is outlined as part of the Abbvie site address in emails which is AbbVie, Ballytivnan,Sligo, F91 K735, Ireland.

·       In a recent recruitment posting on Linkedin for the vacant position of Biologics Technician within the AbbVie Ballytivnan Site, it clearly states the company as AbbVie. 

·       Abbvie is the name displayed on the manufacturing site building in Ballytivnan, Sligo. This is the plant the Complainant worked in. The Abbvie name is also displayed on uniforms, coats, bags passcards, lanyards etc.

 In a High Court case, County Louth VEC-v-Equality Tribunal [2009] IEHC 370 outlined the circumstances in which proceedings before a statutory tribunal can be amended and held that:

 “If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same”

In a Labour Court case, Travelodge Management Limited-v-Sylvia Wach EDA1511 stated that:

“The procedures adopted by statutory tribunals in relation to the amendment of non-statutory forms used in the initiation of claims should not be more stringent than those that apply in ordinary courts. That is in line with the generally accepted principle that statutory tribunals, such as this court, should operate with the minimum degree of procedural formality consistent with the requirements of natural law”

Furthermore, in a case before the WRC (ADJ-00024354), the employer submitted that the employee had referred the complaint against the trading name of the business and contended it was not the registered name. The employer submitted that the employee had therefore pursued the incorrect employer and was now barred in their claim. The employee submitted that the trading name of the business was included on all documentation and correspondence which he received from his employer. He contended that his employer was always fully aware of this complaint and sought leave to amend the name of the employer. 

The WRC was required to decide whether it is legally permissible for the WRC to accede to the employee’s application to substitute the respondent. The WRC considered the Labour Court case of Auto Depot Limited-v-Vasile Mateiu UDD1954. Mr Mateiu made an application during proceedings in the Labour Court to amend the name of his employer from Auto Depot Tyres Ltd to Auto Depot Ltd. 

The Labour Court allowed his request for the amendment and held that:

“Accordingly, the court considers the erroneous inclusion of “Auto Depot Tyres Ltd on the WRC compliant form to be no more than a technical error. The court is fully satisfied that the employer's name can simply be amended on the paperwork to reflect its correct legal title, that be amended on the paperwork to reflect its correct legal title, that of Auto Depot Ltd”

They also provided an analysis of jurisprudence, relevant authorities and factors it took into consideration when making the decision, the Labour Court stated:

“Having regard to the foregoing and relying in particular on the High Court decision in Capital Food Emporium, the Court is fully satisfied that the correct employer has been pursued by the Complainant. The Court is further satisfied that the respondent party that appeared before the Court was the Complainant's employer. That party was fully aware of the Complainants complaints to the WRC from July 2017. He knew precisely from whom the complaints were and to what the complaints referred. The respondent party has had a full opportunity to be heard and to answer those complaints. The Court is therefore equally satisfied that the employer will suffer no prejudice or injustice by its decision on this preliminary matter. In arriving at this conclusion, the Court is also conscious of the High Court judgment in O’Higgins-v-University College Dublin & Another (2013) 21MCA wherein Mr Justice Hogan held “Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be)... in these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts”

The Labour Court is satisfied that this approach is in line with the generally accepted principle that statutory tribunals, such as this Court, should operate with the minimum degree of procedural formality consistent with the requirements of natural justice. The Supreme Court in Halal Meat Packers (Ballyhaunis) Ltd-v-Employment Appeals Tribunal [1990] I.L.R.M293 is relevant and held:

“This present case indicates a degree of formality, and even rigidity, which is somewhat surprising. It is a rather ironic turn in history that this Tribunal which was intended to save people from ordinary courts would themselves fall into rigidity comparable to that of the common law before it was modified by equity”

The WRC was satisfied that the principles enunciated by the Labour Court in the Auto Depot Limited case could also be applied in the case ADJ-00024354. The WRC considered the following factors

1.                   The employee named the trading name of the employer as the employer in the proceedings as opposed to the actual name of the company that employed him.

2.                   The employer was fully on notice and accepted these proceedings from the outset.

3.                   No issue regarding the issue concerning the incorrect employer was notified by the employee’s employer to either the employee or the WRC prior to the hearing date; and

4.                   The correct employer appeared at the hearing with its legal representatives.

The WRC was satisfied that the correct employer had been pursued in relation to the complaints and that the misstatement by the employee of his employer's name on the Complaint constitutes a technical error.

 Conclusion

The Complainant has outlined her reasoning in her responses above as to why she submitted the company name “Abbvie” as her employer and shows how such an erroneous inclusion had taken place. As in the ruling in the Auto Depot Limited-v-Vasile Mateiu UDD1954 case, the misstatement by the employee of the employer's name constitutes a technical error. The Complainant wishes to submit a request for her employer's company name, to which she referred to as “Abbvie” in her submission and complaint form be allowed to be substituted to the actual company name of “AbbVie NL B.V” and for the above factors , cases and relevant authorities to be taken into consideration when making a decision. This substitution has no bearing as the general nature of the complaint remains the same.

The Complainant requests the Respondents Preliminary Objection not to be upheld. The Respondent was made aware of the Complainants complaint by correspondence from the WRC dated the 18th of November 2024. The Complainant stated Abbvie as her employer on her complaint form. The Respondent did not notify the Complainant or the WRC regarding the issue of incorrect employer named at any time from the 18th of November 2024 until the hearing on the 22nd July 2025. The Complainants employer and their legal representatives were present at the hearing on the 22nd of July 2025 emphasizing the correct employer had been pursued.

Preliminary Issue

The Complainant has named “AbbVie” as the employer in her claim. However, AbbVie is not a legal entity. Rather it is the registered business name of another company (Fournier Laboratories Ireland Limited) that is not the Complainant’s employer which is AbbVie Ireland N.L B.V. being the name contained in the letters of appointment issued to the Complainant and in her contract of employment. For information, Fournier Laboratories Ireland Limited t/a AbbVie is the legal entity that employs employees at a manufacturing site in Cork. In these circumstances, there was no reason for the Complainant to have included the incorrect name of her employer in her complaint form initiating her claim under the EEA.

Section 88(2) of the EEA permits the Director General of the WRC to “correct a mistake (including an omission) of a verbal or formal nature in a decision or determination.” In Travelodge Management Ltd v. Wach EDA1511, the Labour Court accepted the bona fides of the mistake made by the complainant in respect to naming the employer but rejected the argument that this section permitted it to substitute the name of the corporate entity that was the correct employer for the name of the entity put down in the complaint form, concluding that this went beyond the power conferred by s.88(2). 

More recently in Lawlor’s Hotel v. Deborah McMahon EDA2555 (25th June 2025), the Labour Court concluded that it could not substitute the name of the respondent for the correct name of the employer as it had no statutory basis to do so. In that case, “Lawlor’s Hotel” was the registered trading name of the employer “Burke Hotels Limited”. In addressing the issue, the Labour Court stated as follows:

“Nevertheless, the Complainant has named as the Respondent to the within proceedings, a mere trading name. She has not identified any legal entity as Respondent. The Court is satisfied that she was on notice at all times that her employer was Burke Hotels Limited as stated in her contract of employment and on her payslips. This oversight on the Complainant’s part is not something that the Court has any statutory basis to rectify. The Court is further satisfied that the facts of the within appeal are entirely distinguishable from those in Auto Depot Limited v Vasile Mateiu UDD1954, which the Complainant’s representative seeks to rely on. In the latter case, the Complainant had been employed by the named Respondent, and by a related company the name of which differed only very slightly from it, had never been given any written documentation or payslips and English was not his native language.”

The Employer is not consenting to the name of the respondent being changed to AbbVie Ireland NL B.V. It is submitted that there is no power conferred on the WRC to enable it to substitute the name of a respondent for another name and that s.88(2) of the EEA does not confer any such power. In the circumstances where the Complainant has not named the correct employer,

The complainant referred to the fact that AbbVie “is mentioned 28 times” in the confidentiality agreement as attached to the Complainant’s contract of employment. In reply to this argument, it is noted on behalf of the Employer that the first line of the confidentiality agreement contains the Employer’s correct name which is then defined for the purpose of that document as “AbbVie” in a like manner to the Complainant being defined throughout that document as the “Employee”. It is common practice for terms that appear regularly throughout a document to be defined in a more concise manner for convenience. It is submitted that, contrary to the Complainant’s submission, the confidentially agreement in fact only clarifies that the correct name of the Complainant’s Employer is AbbVie Ireland NL B.V (as also clearly apparent from the Complainant’s contract of employment). 

It is not disputed that the Employer uses AbbVie as a company logo and brand name. This is similar to many other companies that use logos or brand names such as for example Apple, McDonald’s, Coca-Cola, Google, Nike and Pfizer to name but a few. It is submitted that it is entirely clear these logos or brand names are not the names of the legal entity in each case. The use of such logos or brand names could not reasonably entitle a party seeking to sue any of these entities to issue proceedings against the logo or brand name instead of ascertaining the correct name of the underlying legal entity, which in the Complainant’s case was readily ascertainable from her contract of employment. 

In her legal arguments the Complainant referred to the following WRC cases: A Civil Engineer v. A Concrete Manufacturing Company ADJ-00027348 and A Lorry Driver v. A Waste Management Company ADJ-00024354. She also relied on the Labour Court decision in in Auto Depot Limited v. Vasile Mateiu UDD1954 to argue that the misstatement of the name of the Employer in her complaint form constituted a “technical error” and to ground her request that it be substituted for the correct name of the Employer. She argued that such a substitution would have no bearing on her case which would remain the same and she noted that the Employer had not notified the WRC or the Complainant about the incorrect name contained in the complaint form (until providing its written submissions dated 17th July 2025) despite having received notification of her complaint by WRC correspondence dated 18th November 2024.  

In Auto Depot Limited v. Vasile Mateiu, which concerned a claim of unfair dismissal, the Labour Court found that the erroneous inclusion of “Auto Depot Tyres Ltd” on the complaint form instead of “Auto Depot Ltd” was “no more than a technical error” and stated: “The Court is fully satisfied that the Respondent’s name can simply be amended on the paperwork to reflect its correct legal title”. In reaching this decision, the Labour Court referred to the fact the employer was aware of the claims; had had a full opportunity to be heard and that the employer would not suffer any prejudice or injustice by allowing such an amendment. 

The Labour Court was of the view that its approach was in line with the “generally accepted principle that statutory tribunals, such as this Court, should operate with the minimum degree of procedural formality consistent with the requirements of natural justice” referencing the Supreme Court decision in Halal Meat Packers (Ballyhaunis) Ltd v. Employment Appeals Tribunal [1990] ILRM 293 to support this contention. 

The Labour Court also relied on the following dicta of Hogan J. in O’Higgins v. University College Dublin and the Labour Court [2013] IEHC 431

“Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be)…In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.”

It is submitted however that this decision is not a relevant authority in respect of the matter to be determined herein. O’Higgins concerned a point of law appeal under the EEA from the Labour Court to the High Court governed by Order 106 of the Rules of the Superior Courts. The question at issue concerned the validity of the appeal in circumstances where the respondent party was not named in the originating notice of motion by which the appeal had issued and had not been added as a party until after the expiry of the time limit for making such an appeal. It did not concern the identity of the parties in the original complaint form nor whether there was a statutory power under the EEA to substitute employers to an extant claim.

The issue was decided in the appellant’s favour based on the actual wording of Order 106. The High Court then went on to consider the question of whether the striking out of the appeal in the circumstances would compromise the appellant’s constitutional right of access to the courts in respect of which Hogan J. expressed his view as quoted above. Significantly however, the High Court has the inherent jurisdiction to deal with such matters and the power to remedy them where it considers it just and appropriate to do so. Neither the WRC nor the Labour Court has any such inherent jurisdiction or power and both are clearly limited in the exercise of their jurisdiction by the requirement to act in accordance with their statutory powers. It is submitted therefore that the above dicta from Hogan J. has no application to the matter for consideration herein based on (a) the distinguishing factual context and (b) the fundamental difference in the jurisdictional remit between the superior courts on the one hand and statutory bodies on the other. 

What is highly material in respect of the decision in Auto Depot Ltd regarding the matter raised herein however is that the Labour Court did not identify or rely on any actual statutory power to amend the name of the respondent in the proceedings before it. 

In A Lorry Driver v. A Waste Management Company the complainant was successful in his application to amend the name of the respondent from the trading name used in the complaint form to the correct legal entity in respect of his claims under the Terms of Employment (Information) Act 1994; the Unfair Dismissals Act 1977 and the Industrial Relations Act 1969.

In that case, the complainant stated that he had not been aware of the correct employer name as the business name had appeared on all documentation and correspondence and he argued that the employer was aware of the complaint at all material times. In allowing the amendment, the Adjudication Officer (the AO) relied on the Labour Court decision in Auto Depot Limited v. Vasile Mateiu.  The AO noted the courts had held that statutory administrative bodies should not adopt a more stringent procedural approach than that adopted in ordinary litigation where it was possible to seek to have the parties’ names amended. He found that the “mis-statement” of the employer’s name in the complaint form constituted a “technical error.” He was satisfied the employer was on notice of the claims and would suffer no prejudice as a result of allowing the amendment. He also noted that no issue had been taken with the respondent’s name until the day of the hearing.  He concluded that to decline jurisdiction in the circumstances would be a “grossly disproportionate response” as per the apparent dicta of Hogan J. in O’Higgins v. University College Dublin [2013] IEHC 431 (referred to above). 

It is again noted however that the AO did not cite a specific statutory power to facilitate making such an amendment. 

In A Civil Engineer v. A Concrete Manufacturing Company ADJ-00027348 the complainant was in fact unsuccessful in applying for the substitution of the incorrect name of the respondent for the correct name of the employer. That case concerned complaints under the National Minimum Wages Act 2000; the Organisation of Working Time Act 1997 and the Payment of Wages Act 1991 by a Brazilian national where it was stated she had submitted the WRC application in haste without the advice of a solicitor and had made a mistake in the employer’s name. In her decision the AO stated: “There is no statutory mechanism which the Complainant can invoke in the circumstances of this case to facilitate the amendment or substitution of the Respondent’s name as requested.” The AO further found that the complainant was statute barred from pursuing the claim in circumstances where the application to amend was made over 12 months after the complainant’s termination.  

It is the Employer’s position that it was the Complainant’s responsibility to ensure the correct name was used on her complaint form when initiating her claim which information was readily available to her.  The Complainant should have been fully aware of the Employer’s correct name from her letter of appointment, her contract of employment and the confidentiality agreement. Furthermore, the Employer’s name also appeared on the occupational health reports and the letter of 5th October 2021 regarding the Complainant’s move to the device technician role. 

It is noted that the Complainant has not identified any cases concerning a claim under the EEA where the name of the respondent has been permitted to be amended.  Nor has the Complainant addressed the Labour Court decision in Lawlor’s Hotel v. Deborah McMahon EDA2555 (25th June 2025) as relied upon by the Employer to support its application and which is the most recent decision by the Labour Court on this question. There the Labour Court found that it could not substitute the name of the respondent for the correct name of the employer as it had no statutory basis to do so by stating: “This oversight on the Complainant’s part is not something that the Court has any statutory basis to rectify.”

This raises the fundamental issue for the Complainant here in that none of the decisions relied upon her (or indeed in any other decisions on the issue) have identified a specific power to amend the name of a respondent, or to substitute the name of a respondent for another. As noted in the original submissions on behalf of the Employer, s. 88(2) of the EEA provides for correcting a mistake in a decision or determination but not otherwise. As noted in Travelodge Management Ltd v. Sylwia Wach EDA1511 that provision is not intended to deal with a situation involving the amendment of a named party to the proceedings and using it to do so would go beyond what was intended by that provision. A similar provision is contained at s. 39 of the Organisation of Working Time Act 1997 (the OWTA) which sets out the powers of adjudication officers and the Labour Court in certain circumstances and under several pieces of employment law legislation (although that does not include the EEA). This section firstly provides

(at s.39(1)) for the amendment in certain circumstances of the name of an employer as it appears in a decision – which is similar to the power contained at s. 88(2) of the EEA. The section also provides (at s.39(4)) for a mechanism by which a complainant can apply to issue fresh proceedings against an employer incorrectly identified in the original complaint form where the time limit for initiating proceedings has elapsed. There is no such equivalent provision contained in the EEA. 

is submitted that the appropriate inference to be drawn from these express statutory provisions(at s.88(2) of the EEA and s.39 of the OWTA) is that there is no other power afforded to the WRC or the Labour Court to amend the names of parties as originally identified in the complaint form. Therefore, in order to avail of this power, the circumstances must fall within those specified in these provisions – otherwise, it is submitted, the power to amend the name of a respondent does not exist.  This, it is submitted, is the de facto conclusion reached by the Labour Court in Lawlor’s Hotel.

In this respect, it is submitted that the other factors referred to in the case law such as: whether the employer was properly on notice of the claim; whether the employer had raised the issue of the incorrectly named respondent at the first opportunity; whether the employee was aware of the correct name of the employer; whether the employer would be prejudiced by the amendment – all concern the question of how to exercise a power to amend. However, if such a power does not exist (as the Employer maintains), those factors do not arise for consideration. Therefore, regardless of the circumstances, including the prejudice that may be caused by not permitting a complainant to substitute a correctly identified employer for an incorrectly identified one, it is submitted that without an express statutory power to substitute employers, the WRC/Labour Court quite simply has no lawful entitlement to permit or give effect to such substitution. In this vein, the fact that the Employer respectfully submits that it would suffer prejudice if the Complainant’s claim against it was permitted to be progressed (e.g. because it would be required to defend a claim that if only instituted against it now would, in our respectful submission, clearly be statute barred), equally does not arise for consideration in circumstances where, absent a statutory power to substitute employers, it is submitted the claim against the Employer cannot lawfully be permitted to be progressed. 

It remains open to the Complainant to institute a new claim against the Employer in this case. However, it will be the Employer’s position that the Complainant would be out of time to raise any issue regarding the application process for the Validation Engineer role that took place in June 2024 being the only application process referred to by the Complainant that falls within the cognisable period covered by her original complaint. 

The proceedings before me relate to a complaint made under Section 77 of the Employment Equality Act 1998 and only that Act.  Therefore I can only consider the preliminary issue in the context of section 88 of that Act.

Section 88 of the Employment Equality Act 1998 provides that:

“(2) By notice in writing to the parties, the Director or, as the case may be, the Chairman of the Labour Court may correct any mistake (including an omission) of a verbal or formal nature in a decision or determination under this Part.

(4) If any person who participated in an investigation under section 79 or 86 is not correctly identified in the resulting decision or determination, the correction of that error shall be regarded as falling within subsection (2).”

The provision has commonly been invoked by Adjudication Officers (and previously Equality Officers) and the Labour Court to amend or correct a decision where an error or a formal nature appears on a written decision. This provision was not intended to be invoked by a complainant to amend that name of a respondent in proceedings under the Employment Equality Acts.

This interpretation has been endorsed by the Labour Court, in the case of Travelodge Management Limited -v- Sylwia Wach EDA1511 where it was held that: “The Complainant relies on s.88 of the Act in urging the Court to amend the proceedings. In the Court’s view s.88 is not intended to deal with a situation such as that which arose in this case. That section is intended to enable the Court (or the Equality Tribunal) to amend a determination or a decision, as the case may be, where an error of a formal or verbal nature appears on the face of a written determination or decision. That can include a formal or verbal error in the name of a party that participated in the investigation.

What is in issue in this case does not involve a formal or verbal error. Nor does the Complainant’s application relate to a Determination issued by the Court. The wrong Respondent was impleaded and the Union’s application is to amend the claim by substituting another legal person for the Respondent cited. In the Court’s view that goes beyond was intended by s.88 of the Act.”

Similarly in  Lawlor’s Hotel v. Deborah McMahon EDA2555 the Labour Court found that it could not substitute the name of the respondent for the correct name of the employer as it had no statutory basis to do so.

The respondent in the case before me has not agreed to a change of name and I do not have the statutory power under the Employment Equality Act, (the Act under which these proceedings have been initiated), to alter the respondent’s name other than in to amend a determination or a decision, as the case may be, where an error of a formal or verbal nature appears on the face of a written determination or decision. What is being sought by the complainant in this instance does not fall within the scope of the statutory power afforded to me.

I note the comments of the respondent that ‘It remains open to the Complainant to institute a new claim against the Employer in this case’.  The caution espoused by the respondent relating to time limitations may not apply if continuing discrimination is alleged. 

My decision on the preliminary issue is that the case has not been taken against the appropriate legal entity and therefore I cannot hear the substantive case.

I find that the case has not been taken against the appropriate legal entity.  I therefore cannot consider the substantive allegations made by the complainant.

Wrong legal entity