Complainant

Respondent

Parties

Saira  Mehdi

Irish Pensions And Finance

Representatives

  Self -represented.

Mr Barry O’Mahony instructed by  Richard Black Solicitors

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-00068808-002

23/01/2025

The complainant submits that she has been indirectly discriminated against on the grounds of disability contrary to the provisions of the Employment Equality Act, 1998 as amended by being obliged to disclose her health issues as an applicant in an initial selection process for the position of Assistant Financial Advisor on 20/1/2025.

She lodged her complaint with the WRC on 23/1/2025.

Request for Anonymisation.

On the 10 /10/2025, after the hearing had concluded, the complainant emailed the WRC requesting that her decision be anonymised due, she stated,

 “ to the nature of the complaint being in regard to disability/discrimination”. 

The employer on being notified raised no objection to same.

I did explain at the outset of the hearing the obligations resting with the WRC to publicise decisions on foot of Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24, based on the requirement that justice be dispensed in public.

My decision on the request to anonymise the parties is contained in my Findings and Conclusions.

Evidence of the complainant given under affirmation.

The complainant confirmed that she had withdrawn her earlier complaint under the Equal Status Act, 2000.

The complainant stated that her complaint is one of indirect discrimination based on grounds of disability. She has suffered from ADHD since 2019.

The discriminatory act was the requirement for her to disclose aspects of her health on an application form as a preliminary step in the selection process for the position of Assistant Financial Advisor with the respondent.

In January 2025, she emailed the respondent prior to the scheduling of an interview. Having put her CV into the Irish Pensions and Finance careers site, she received an email from the HR & Facilities Administrator on the 20th of January 2025 acknowledging her interest in the role and informing her that prior to being considered for the first round of interviews, she would be required to complete an application form.

The initial portion of the form consisted of standard administrative questions, such as name, address, and how she had heard about the respondent. However, the later section of the form asked her to disclose absences in excess of 2 weeks in the past two years, to disclose if she was a registered disabled person and if she suffered from any condition that might impact on her work.

She believes these questions are discriminatory in nature and are not required questions in any job application. She has thrived in her previous work and in her college degree.

Given the existence of these discriminatory questions, she chose not to submit the application form as she believed she would get no further in the selection process. She believes that disclosure of her health problems would not have earned her the tag of “good candidate”, which is what the employer was seeking.

She has a very good CV and would have been in a much more favourable position were it not for those questions.

She does not believe that these questions were intended to establish if applicants had accommodation needs, but rather to weed out applicants with disabilities. They were unusual questions to appear at such an early stage of the process.

Her requirement for accommodation, for example, working from home and flexibility around working hours, had never been a concern in previous employments.

Cross examination of the complainant.

The complainant accepts that in initial email correspondence with the employer she was given the opportunity to raise any questions.

She confirms that did not submit an application form.

She did not inform the employer of any disability.

Conclusion

The complainant stated that she had never had to disclose any disability or her health status in any previous interview.

She asks the adjudicator to uphold her complaint of indirect discrimination on the grounds of disability.

The respondent denies that they discriminated against the complainant on any of the grounds under the Act.

The respondent contends that the complainant has failed to raise a prima facie case of discrimination. It was conjecture on her part to withdraw from the selection process because of the initial application form.

Furthermore, the absence of a comparator means that there is no jurisdiction to hear this complaint.

If she needed accommodation the employer, being unaware of any disability, was unable to provide same. There is an obligation resting with the employee to disclose need for same.

The first the respondent knew of any disability was in July 2025.

Evidence of HR Manager given under affirmation.

The witness explained that the first step in the recruitment process is via the recruitment tool where an applicant indicates interest. The second step entails the submission of the impugned application form as a preliminary to the third step which  is a telephone interview, and depending on how the applicant performs, the fourth step is a face-to-face interview. The final step is to bring the applicant n to the office to see how they might fit in with the culture etc. The witness stated that they used to book in people without the initial application form and they had a huge number of no shows.

The witness stated that amongst their staff of 106 they have two employees who are neurodivergent. They have made accommodation for neurodivergent employees, facilitating hybrid working, and different lighting arrangements. They were not aware of their employees’ disabilities before they employed them.

Concerning their willingness to provide accommodation, they would, if aware, arrange an interview in a quiet room or on a quiet day in the office for a candidate with autism.

The witness stated that they removed the questions from their application form in March 2025.

They need to know in advance of interviews if, for example, an applicant is a wheelchair user.

Legal submission

The respondent refers to the requirement contained in section 85A of the Act for the complainant to raise an inference of discrimination. The respondent cites DPP V Sheehan EDA0416 which in elaborating on the requirements of section 85A, stipulated that:

” the complainant must establish a factual matrix from which the Court may properly infer that discrimination has occurred”

The complainant has failed to comply with this requirement.

The respondent cites Employer v A Worker, ADR/19/11 which held that in order to succeed in a complaint of discrimination on the grounds of disability, an employee must provide medical evidence of that disability to the employer.

Conclusion.

The complaint is based on speculation. The complainant would have got an interview. She torpedoed her case.

The complainant has not submitted any comparator. The complainant has failed to raise a prima facie case of discrimination. But if the adjudicator were to find otherwise, the evidence of the respondent witness has rebutted it, particularly given their absence of knowledge of the complainant’s health issues.

The complaint should be dismissed pursuant to section 77 A of the Act of 1998.

The complainant’s request for anonymisation.

 I did explain at the outset of the hearing the obligations resting with the WRC to publicise decisions on foot of Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24, based on the requirement that justice be dispensed in public. The complainant received a letter from the WRC on 24 January 2025 in advance of the hearing notifying her of this requirement.

Th complainant made no such request at the hearing on the 10/7/25, so I was not in position to understand or test the basis for her request.

Section 89 of the Act of 1998 as amended by the Workplace Relations Act 2015 provides that

“—(1) A copy of every decision of the Director General of the Workplace Relations Commission under this Part shall be given—

(a) to each of the parties, and

(b) to the Labour Court,

and every such decision shall be published on the internet in such form and in such manner as the Director General of the Workplace Relations Commission considers appropriate.”

While I can understand the sensitivity of the complainant, this does not outweigh the requirement to publicise decisions, nor does it meet the threshold required to disregard the requirement as per Zalewski that justice be dispensed in public. The complainant will have seen many decisions on the WRC website where parties are named in complaints of discrimination on the grounds of disability.

I am unable to accept the request for the decision to be anonymised.

Substantive case.

I am required to establish if the complainant was indirectly discriminated against on grounds of disability, contrary to section 8(5) of the Act and based on section 6 (2)(g) of the Acts, when she was required to submit details about her health in the respondent’s application form in order to progress to a telephone interview.

These questions were as follows:

1. Are you in good health?

2. Have you been out of work sick for 2 weeks or more in the last 2 years?

3. Do you have any medical conditions that impact you from doing your work?

4. Are you a registered disabled person.

The respondent ceased to be put these questions to candidates since March 2025.

Relevant Law.

Firstly, the definition of discrimination is found in section 6 of the Act.

“(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.”

Section 8(5)(a) of the Act as amended prohibits discrimination and provides that:

“Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a)         in any arrangements the employer makes for the purpose of deciding to whom employment should be offered.”

The arrangements that this respondent made included the requirement to answer questions relating to an applicant’s health.

These are curious questions to put to a candidate at the initial stage of a selection process. I find it hard to accept that these were designed to inform the respondent of any need for accommodation on the part of applicants, as the next stage was a telephone interview when the need for accommodation was unlikely to arise, as opposed to the following stage, which was a face-to-face interview.

But it is the consequences and not merely the existence of these questions that must be examined in the context of section 85A of the Act.

Burden of proof

 Section 85A of the Act states:

“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”

Indirect discrimination is defined in section 31 of the Act.

It is taken to occur where a worker or group of workers or job applicants are treated less favourably as a result of a rule /arrangement / practice which applies to all applicants but which persons possessing a particular protected characteristic might find hard to satisfy or may be adversely affected to a disproportionate extent by the application of this rule/ arrangement.

Has the complainant met the burden of proof.

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201. The Labour Court concluded that”

 “a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if 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 was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.”

The primary facts advanced by the complainant to raise an inference of discrimination were the existence of the questions concerning her health and the existence of her disability.

In order to meet this first test and show that a prima facie case exists, the complainant is obliged to satisfy three elements of a test laid out in In Minaguchi v Mr. Ray Byrne, T/A Wineport Lakeshore Restaurant DEC-E/2002/20 and in other decisions. They are:

- That s/he is covered by the relevant discriminatory ground(s);

- That s/he has been subjected to specific treatments; 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.”

The relevant discriminatory ground.

The complaint submitted medical evidence dated 02/07/2025 stating that she suffers from ADHD. It does not refer to the material time when she was presented with the application form, January 2025. Her evidence given under affirmation tells that she has suffered from ADHD since 2019. The respondent did not contest this evidence. I find that this condition meets the definition of disability found in 2(i)(e) of the Act.

The specific treatment

This is the requirement to disclose details of her health in an initial shortlisting exercise.

But the issue is what, if anything, flowed from the submission of and use of those details by the respondent; what were the consequences of requiring the complainant to complete the details. That fact is unknown and remains in the realms of conjecture as the complainant opted out of engaging further with the selection process.

I must consider if the complainant has established facts from which indirect discrimination may be inferred.

Complaints of indirect discrimination have been upheld on the basis of the adverse consequences arising for complainants required to comply with a policy or arrangements impacting disproportionately on a protected group. In Tanya Phelan v Bausch Health Ireland Limited ADJ-00041120, the complainant wasn’t shortlisted due to her failure to meet the policy on absences. In Courtney Carter v Tesco Ireland Limited ADJ-0004988, the complainant failed to pass her probationary period due to the employer’s policy on absences which applied to all employees.  But she had obligations to care for her sick child. The finding was one of indirect discrimination on grounds of family status in that the rule which applied to everybody, impacted adversely on her to a greater degree than those with a different family status. These decisions illustrate concrete adverse effects perpetrated by the employer flowing from the imposition of these rules. In the instant case the adverse effects were perpetrated by the complainant.

What was the less favourable treatment for the complainant in the instant case.? While she identifies very questionable requests for details on health, she opted out of the selection process because she feared she would progress no further were she to have disclosed her health status. While her suspicions may have been correct, she is unable to identify less favourable treatment such as failure to progress to the next stage of the selection process. Had she proceeded and fallen at the first fence- not being offered a telephone interview- she might then have had a case to make out of less favourable treatment, but she is unable to show this. She can show the existence of dubious questions, but she cannot show the effect of same.

The less favourable treatment, the essential component in a complaint of discrimination did not materialise for her. The particular disadvantage arising as a result of the questions did not materialise.

In Melbury Developments Ltd v Valpeters [2010] ELR 64, the Labour Court noted that

 “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.

It was speculative of the complainant to conclude that she would not progress to the second step.

I have been given no basis for drawing an inference of discrimination from the supposed intention of this respondent to terminate the selection process on foot of the complainant meeting the requirement to disclose details of her health issues.

I find that the complainant has failed to raise an inference of discrimination on the grounds of disability, and her complaint cannot succeed.

Absence of prima facie case.