EDA2559

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045899 (CA-00056727-001).

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 7 November 2024.

Labour Court hearings took place on 15 and 16 July 2025.

The following is the Determination of the Court

DETERMINATION:

1Background to the Appeal

This is an appeal by the Complainant against decision of an Adjudication Officer ADJ-00045899 CA-00056727-001 dated 3 October 2024 under the Employment Equality Act 1998 (‘the Act’).  The Adjudication Officer held that the complaint was not well founded. The Complainant’s notice of appeal was received in the Court on 07 November 2024. The Court heard the appeal in Dublin on 15 and 16 July 2025.

The complaint was lodged with the WRC on 18 May 2023. The cognisable period for the purpose of the Act is 19 November 2022 to 18 May 2023.  It was not in dispute that the Complainant had a disability at the relevant time.

2 Summary of Complainants submission

The Complainant submitted that the basis of his claim was simple, he had a substantial role in Unite, the most substantial role in this jurisdiction, he got cancer and, on his return to work, his role was substantially removed. This was discriminatory behaviour by his employer based on his disability.  He stated that he has been employed by the Respondent in this jurisdiction since 2004. Arising from his cancer diagnosis he was absent on certified sick leave from July 2021 until July 2022. It was his submission that prior to his diagnosis in July 2021 he was the Senior Officer of the Respondent in the Republic of Ireland and the only person holding that title and role. He informed the Court that his duties were extensive and of a management nature and went on to list the main issues that he led out on and the roles, he held on behalf of the Union. He reported directly to Jackie Pollock in the Belfast Office and to the then General Secretary Mr McCluskey. He was the acknowledged head of the Union in the Republic of Ireland.

On his return to work and unknown to him a decision had been taken by the Respondent not to return him to his previous role. The Complainant stated that he was discriminated against compared to other colleagues performing the same duties/ roles and tasks and that no comparator doing any of the tasks he had previously done had their role withdrawn. The Complainant opened to the Court EDA129- A Worker v Two Respondents in terms of the unique combination of tasks he carried out.  He was excluded from an Irish Regional Committee (IRC) meeting on 25 July 2022 after he returned to work on 22 July 2022. The meeting recorded his apologies, but he had not been informed of the meeting and had not tendered apologies.

It was the Complainant’s submission that the return-to-work interview was the start of the process to prevent him from returning to his role. At that meeting his Regional Manager wanted him to take a role in the Dundalk Office which was at a lower position and was a post the Complainant had already indicated he was not interested in. The return-to-work interview was not the normal process as there was a minute taker and a member of HR present. The doctor had certified him as fit to return to his duties, but what was being discussed was not the full range of duties he previously carried out. It appeared to him that he was not being allowed to fulfil most of his tasks. The Complainant set out for the Court how he had brought Mr Fitzgerald and his sister into the Union a number of years previously.

During his illness Ms Graham the serving General Secretary placed Mr Fitzgerald in the Regional Co-ordinating role replacing Mr Brown who had moved to another role. He had always worked well with Mr Brown, and they often covered for each other, so he had not anticipated any difficulties in working with Mr Fitzgerald. It was his submission however, that Mr Fitzgerald had assumed or helped to disseminate the bulk of his role and that Mr Fitzgerald explained that to him at a face-to-face meeting on 24 August 2022. He also set it out on a whiteboard at the meeting.   Prior to that meeting their paths had crossed at an event on 17 August 2022, and he was surprised to receive a call from Mr Fitzgerald on 19 August 2022, where he indicated that he felt the Complainant’s presence at the event on 17 August had undermined him in his new role. The Complainant stated that he re assured Mr Fitzgerald that was not the case. He had received an invite as he had previously worked in that area for some time.  At the meeting on 24 August 2022 Mr Fitzgerald advised that he had been asked to draw up a strategic plan for the Union in the Republic of Ireland by the General Secretary Ms Graham and that the Complainant was not to be part of it.

On 13 September 2022 the Complainant was invited to a meeting with Mr Pollock Regional Manager in Dundalk following on from a social media publication by the Complainant’s wife on her own social media account as she felt compelled to defend him from online criticism that he was failing to carry out aspects of his job, particularly in respect of campaigning around water services. His representative at that meeting made it clear to the Respondent, that if they had an issue with the post, they should be speaking to the person who posted it who was a Unite member and chair of one of their branches. At the meeting the Complainant raised the fact that Mr Fitzgerald had told him he was asked by the General Secretary to draw up a strategic plan and that the Complainant was not to be part of it. Both Mr Griffiths (HR) and Mr Pollock expressed surprise that he had been told that.

Later that month the biennial conference took place in Malahide, and he noticed that contrary to previous arrangements he and some other colleagues were no longer seated at the top table and were instead seated in the conference area. The Complainant stated that as he entered the hotel to attend the conference he bumped into the Union Chair who he knew for many years, and he was taken aback at the manner in which the chair addressed him. He was further surprised when the Chairman made remarks that were damaging to him in his opening address.

A short time later he was invited by Ms Cartmail Executive Head of Operations to meet with her in London. He attended with his representative and Ms Cartmail was accompanied by Head of HR Ms Kielim. The Complainant stated that he was surprised at the meeting when Ms Cartmail asked him to explain what his role had been prior to his cancer, as he felt she should have known what his role was as he had some previous dealings with her. He felt that Ms Cartmail questioned his medical certificate and was surprised that she raised a previous medical issue. He raised the fact that Mr Fitzgerald had informed him he was doing a strategic plan for the General Secretary and that the Complainant was to be excluded. Ms Cartmail stated that the General Secretary had never said that. Ms Cartmail spoke at length about a change in policy away from politics and towards industrial matters. In respect of the Complainant’s role Ms Cartmail said she would speak to the Regional Secretary Mr Pollock.

The following week Mr Pollock asked to meet the Complainant without his representative present in a final effort to resolve the issue. At the meeting the Complainant made it clear he wanted to return to his role in line with what he had set out in his grievance complaint. In the course of discussion, the Complainant suggested a role that involved Education (ROI), Legal oversight (ROI), Sustainability and European Affairs.  Mr Pollock said he would discuss that proposal with Ms Cartmail and a week later he rang to say that Education and Legal were available, but he could not at that point deliver Sustainability and European Affairs. On the 2nd November 2022 Mr Pollock sent a letter with an ultimatum that he was to accept reassignment and focus on the Legal and Education roles. The Complainant immediately rejected this proposal.  He submitted a workplace grievance on 11 November 2022 stating that his role had been removed following his cancer.  While his grievance was heard in February 2023, he never received an outcome to same. His representative on numerous occasions requested the outcome of the grievance process following a recorded and transcribed meeting on the matter on 8 February 2023, a copy of which was provided to the Court. Despite the requests the outcome of the process was never provided.

In and around this time Mr Pollock retired as Regional Secretary creating a vacancy which the Complainant applied for. It was his submission that of the three candidates he was the longest serving officer of the Union. This role was one that reported directly to the new General Secretary.  

The Complainant requested that his grievance be resolved before the selection process for the vacancy commenced. This request was not facilitated, and he was called for an interview on 28 February 2023. Mr Hughes who was overseeing the grievance process made contact with the Complainant’s representative the week before the interview to arrange an online meeting on 23 February 2023. At that meeting Mr Hughes suggested that there was concern that the Complainant was applying for the position and that he should consider withdrawing or looking for a severance package. He was confident that a severance package could be arranged quickly.  The Complainant confirmed that he would not be seeking a severance package and that he would be attending for interview the following week. The Complainant at the commencement of the interview raised a concern in respect of one member of the interview panel who then stepped back in respect of his interview. This meant that the process by which he was interviewed was different to the other two participants which the Complainant submitted was discriminatory.

Later on the same day the interview was held, he was informed that he was unsuccessful. The Complainant then submitted a second grievance on the issues arising in respect of the interview process. That grievance was never heard. All during this period the Complainant submitted that he was prevented from carrying out his previous duties.

Mr Hughes then invited the Complainant and his representative to meet him in London on 14 April 2023 with a member of HR Ms Kielem. Again, the outcome of the Complainant’s grievance was not provided. There were discussions about an exit package even though he indicated this was not what he wanted. The meeting ended with the Respondent offering to clarify a number of issues and set out the details in writing which never happened. As there were no further efforts to resolve the issues the Complainant made a referral to the WRC on 18 May 2023.

The Complainant submitted that he had met the requirements to shift the burden of proof to the Respondent and in support of that submission he cited s85A of the Act and opened the case of Southern Health Board v Mitchell [2001] ELR 201.

In responding to the Respondent’s submission, the Complainant noted that there was very little agreed between the parties, but it was agreed that prior to his cancer he held the major political role in the Union for the Republic of Ireland.  The Complainant in his comments indicated that he disagreed with the assertions being made by the Respondent in their submission about a change in direction being instigated by the General Secretary.

 In a closing statement the Complainant submitted that but for his cancer and his absence arising from same it would not have been possible for them to remove his duties, and it did not happen to any comparator political officer or role holder. He went on to submit that no other candidate for the Regional Secretary vacancy received a call from a senior manager seeking that person’s withdrawal from the process or exit from the organisation.  He submitted that this was a substantial primary fact of discrimination and as the Respondent has offered no evidence or explanation the Complainant’s appeal should be upheld.

3 Summary of Respondents submission

Mr Harty SC on behalf of the Respondent submitted that the Complainant prior to his illness did not have the substantial role that he is claiming to have had. He was one of two Grade 10 Officers based in the Republic of Ireland who reported to the Regional Secretary with responsibility for the whole of Ireland. In respect of the political element, he was parachuted into the role of Senior Officer by the then General Secretary. That position was the only position in the Union that was not filled by competition and that did not have a job description or an equivalent post in any other region of the Union. The clear intention on his appointment was that his focus would be political. Political campaigns were what the Complainant spent the vast majority of his time engaging in.

While the Complainant was on sick leave in August 2021 a new General Secretary Sharon Graham was elected on a specific mandate which emphasised Industrial Relations over issue politics. This plainly impacted on the duties of the Complainant. The Complainant was consulted and offered the role of Education Officer (whole of Ireland) and Legal Officer (Republic of Ireland) maintaining his position as one of two Grade 10 officers in the Republic. These roles were necessary and part of the new General Secretary’s mandate to greatly increase emphasis on and expansion of the Union’s Education role and are level 10, his existing level. The Complainant did not accept that role and by letter of 2 November 2022 he was instructed to take the role by his Regional Secretary Mr Pollock. The Complainant refused to take on the role and lodged a grievance about his assignment. In February 2023 he applied for the position of Regional Secretary but was unsuccessful.

The Respondent denies that it discriminated against the Complainant arising from his cancer or at all. The Union was particularly accommodating of the Complainant. At his request the Union were prepared to facilitate him with a lesser and less stressful role in Dundalk, in which he would maintain his salary and benefits. That offer was open to the Complainant until he elected not to take it.

The re-evaluation of roles in the Republic of Ireland stemmed from the mandate of the new General Secretary and the change of emphasis the Union was pursing. It was wholly unconnected to the Complainant personally, or his cancer, and would have transpired regardless of whether he became ill or not. The Complainant’s failure to win the competition for Regional Secretary was, similarly not related to his cancer. His complaint about the competition was in respect of the process and not related to his cancer. The Complainant submits that the General Secretary Ms Graham issued instructions that his position should be eroded and that she said that to Mr Fitzgerald who had recently been appointed to the position of Regional Co-ordinating Officer (level 10) the same level as the Complainant. While there is no truth in this, even if there was, it is not linked to his disability. The new General Secretary did press regions and officers to evaluate what they did and to strategise for growth going forward.

The Complainant’s wife’s Facebook post in September 2022 alleges that he has been sidelined and victimised by the Union and this post did cause some disquiet in the union. It led to the Chairman of the Union addressing it in a speech at the Irish General Conference.

Mr Harty SC submitted that this is an equality discrimination claim, and the Complainant bears the initial burden of adducing facts from which a prima facie case can be inferred such as to transfer the burden of proof to the Respondent. The cognisable period is 19 November 2022 to 18 May 2023. The decision by Mr Pollock to assign the role of Education Officer and Legal Officer to the Complainant by letter of 2 November 2022 falls outside of that period. The Complainant’s version of events does not stand up to scrutiny. The Complainant returned to work on 22 July 2022 on a phased basis in line with the doctor’s recommendation. He met with Mr Fitzgerald on 24 August 2022 just four weeks after his return, three weeks later on 11 September 2022 his wife issued a Facebook post stating he was being sidelined and victimised. Following that the Respondent initiated contact with the Complainant to see what the problem was.

It is not clear what form of discrimination the Complainant is alleging. There are three ingredients which must be established in evidence for a claim of discrimination contrary to the Act. 1) they must have a protected characteristic in this instance disability which is not in dispute. 2) that they suffered less favourable treatment compared to an employee who does not have the same protected characteristic. 3) that the differential in treatment was because of, the protected characteristic. In respect of the burden of proof   Mr Harty SC opened Graham Anthony and Company Limited v Margetts EDA038 where the Court considered the burden of proof and held that “the 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 produce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred”. 

The Complainant has not adduced any comparator in respect of whom his treatment has been less favourable or would be less favourable in a comparable situation, nor has he set out how in relation to his disability he was treated differently. As the second ingredient required in a claim under the Act has not been made out the claim cannot succeed. The Complainant has also failed to identify a nexus between the alleged differential in treatment and the protected characteristic.

The main issues in this appeal are:

1) the Complainant’s role and duties. The Complainant is a longstanding employee of the Respondent who was seconded to the ESB for a number of years. In 2018 he was appointed directly by the then General Secretary to the position of Senior Officer. This was a new post that did not exist anywhere else in the Union and there was no specific job description attached to it as it was outside of the existing structure in the Union. The Complainant had a range of duties including politics, education and expanding the membership in the community sector. The Complainant’s primary focus was on political activities.

Following the Complainant’s appointment in August 2018 the Regional Secretary sent an email in relation to tasks divided between the Complainant and then then Regional Co-ordinating Officer Mr Brown. It is not accepted that he had oversight of all office management in the Republic of Ireland, or that he had management and oversight of all staff matters, that lay with the Regional Secretary Mr Pollock. On the Industrial side the Industrial Officers reported to the Regional Co-ordinating Officer who reported to the Regional Secretary the Complainant had no involvement in this reporting. On the organising side the Organisers and Team leaders reported to the Senior Organiser for the Irish Region and the Complainant had no involvement whatsoever. The Complainant did not have any staff reporting to him as their line manager.  The Complainant did not have overall responsibility for health and safety that role rests with the Regional Secretary and risk assessments are carried out by an external contractor who reports to the Regional Secretary. The Complainant reported in respect of his area of competence to the Irish executive, the report on regional matters came from the Regional Secretary. The Complainant did not have management oversight of industrial relations but as an experienced official his colleagues would consult him.

In relation to the ICTU, Unite does not have a reporting relationship as such. It has the capacity to elect two officials to the ICTU executive, and different officers from within Unite held those positions over time, including the Regional Co-ordinator and the Regional Secretary.  The Complainant was elected in 2019, and the term is two years. The General-purpose Committee is a further election and Unite does not always have an Officer elected to it. It is accepted that the Complainant did lead all of Unite’s political strategies and activities in the jurisdiction. Community which included growth of membership was part of the Complainant’s role though as far as the Union can see he did little or nothing in relation to this during his tenure.

The Complainant did have some responsibility in terms of handling members complaints, but it was not his exclusive responsibility. The Complainant did not have a specific leadership role in terms of engaging with other unions with the exception of political matters. The Complainant did spearhead involvement in a campaign in relation to tips for hospitality workers and successfully pursued claims to the Labour Court, but he did not lead the hospitality sector as alleged. PR and Media were specifically his responsibility, and he spent the majority of his time doing it. That role changed significantly following the election of the new General Secretary. Prior to his illness Legal was not part of his duties, the Regional Secretary had responsibility for all legal matters in the Irish region. While Education was part of his role very little was done in that area prior to his illness. Like other level 10’s he reported to the Regional Secretary and would provide cover for colleagues as required.

Mr Harty SC submitted that it is fundamentally untrue to state that he was head of the union within the Republic of Ireland. Ireland was not a bifurcated jurisdiction it was a single region with the majority of members in the north of Ireland and all under the remit of the Regional Secretary.  The Regional Co-ordinating officer previously Mr Brown and now Mr Fitzgerald had a body of industrial staff who reported to them, but they did not report to the Complainant.

2) The Dundalk role.  In discussion with Mr Mc Cluskey, previous General Secretary, the Complainant had discussions about taking up a less stressful role on his return to work. The position which was in Dundalk had been advertised and there were eight applicants. The process was put on hold by the General Secretary on the basis that the Complainant would take the position. While it was a more junior position his terms and conditions would be red circled for three years. This the Respondent submitted was a clear demonstration of their flexibility and understanding towards the Complainant.

By email of 2 December 2021, he agreed to take up this role. On 8 December 2021 the offer of the role was communicated including the three-year red circling arrangement. Later the same day the Complainant responded advising that the pay arrangements were not acceptable. Ultimately it was confirmed by Ms Barbara Kielim that were he to take the Dundalk post he would retain his existing pay and conditions permanently. This is a clear indication of the Unions willingness to reach an accommodation with the Complainant.

3) Medical referral and return to work meeting. In line with the Respondent’s policies the Complainant was referred to an Occupational Health Specialist who recommended that he should do a phased return to work, which the Respondent complied with. The Respondent wholly denies the Complainant’s account of the return-to-work meeting and that there was any coercion or attempt to get him to accept the Dundalk position. At the time of that meeting the option was still on the table as he had not confirmed that he was not taking it. It is not accepted that it was inappropriate to have a note taker present.  There was no attempt to block the Complainant from resuming his duties but there was a discussion about a phased return to work.

4) Mr Fitzgerald was successful in a competition to replace Mr Brown as Regional Co-ordinating Officer. He interviewed for the position like all other candidates. Ms Graham the General Secretary was not directly involved in that process. It is agreed that the Complainant met Mr Fitzgerald at the ESB event as Mr Fitzgerald was there in an official capacity and that there was a phone call between the Complainant and Mr Fitzgerald in August 2022 in relation to the ESB issue and in relation to discussing roles.

5) White board meeting and strategic plan. The Union strategic growth plan was discussed by the Union in detail including at meetings which took place at the Irish executive conference. This was a Union-wide thing and region wide for Irish matters.  It was not a Mr Fitzgerald plan. In relation to the strategic work plan it is clear that it is a draft plan, setting out a draft structure and is being submitted from Mr Fitzgerald to Mr Pollock the Regional Secretary. It contains a space for Legal and Education which in fact had been assigned to the Complainant. At the whiteboard meeting the Complainant and Mr Fitzgerald discussed a wide range of areas in the future for the Union in terms of growth. A focus of their discussion was that in terms of political issues the approach of the General Secretary was that politics and the use of politics should serve the interests of working members of the Union rather than being stand alone political policy issues. Following the meeting on 1 September 2022 the Complainant sent an email to Mr Fitzgerald thanking him for his efforts and raising the fact that those above him had not approached him.  However, he did not contact his line manager or lodge a grievance.

On 11 September 2022 the Facebook post was published that accused the Union of a number of matters in relation to the Complainant. This was six weeks after he returned to work and in line with Occupational Health recommendation was returning on a phased basis.  Prior to this post the Complainant had raised no issue or grievance.

It is accepted that Mr Woodhouse made a speech defending the Union at the biennial conference in September 2022 neither the Complainant nor Mr Fitzgerald who is the same grade as him were seated at the top table at that conference as changes to previous arrangements had been made prior to the Complainant’s return to work.  

It is accepted by the Union that the work carried out by the Complainant on freestanding political campaigns such as Right2Water, Repeal the 8th and related matters were duties which he carried out before he was absent on sick leave.  The reason that duty was no longer part of his role when he returned was because of the change in political direction in the Union and was in no way related to his illness.

The Complainant lodged three grievances. The first in November 2022 arising from the new role he was assigned. There were a number of meetings in relation to that grievance and the Complainant made further submissions at different stages between then and May 2023.  The second grievance was launched in March 2023 relating to the interview process for the Regional Secretary vacancy and the third related to an email received by the Complainant in April 2023. The grievances were not concluded and were paused pending negotiations between the Complainant and Management which were without prejudice discussions. In May 2023 the Respondent offered to restart the process to hear the grievances this offer was rejected.

The final issue is the competition for Regional Secretary. The Complainant alleges that by not being the successful candidate he was discriminated against. However, he does not stand that assertion up. He lodged a grievance about the process relating to the fact that he had asked for it to be deferred pending the outcome of his grievance and his objection to Mr Woodhouse on the panel. Neither of which are in any way linked to his cancer.   On the Complainant’s own version of events his concern with the process is a concern relating to personal animus and/or a conflict of interest and / or a flawed process. It does not relate to his disability, and not only does he not make a connection thereto, the Complainant in objecting to the process in correspondence, has specifically referred to different reasons why he challenged that process.

The Respondent opened to the Court the decision of the Labour Court in Board of Management v A Worker in that case various flaws in the process were alleged including personal bias, However, the Court held notwithstanding the flaws in the procedure it was nonetheless found that there was no age discrimination. The Respondent does not accept the Complainant’s challenges to the process and says the procedure was fair and in accordance with procedure. It does not form part of and does not give grounds for an equality complaint. Mr Harty SC submitted that without prejudice to his submission what transpired in relation to the Complainant’s work role and related matters had nothing to do with his cancer.

Mr Harty SC in closing submitted that following the Complainant’s return to work his wife published a Facebook post. There has been no evidence that what was said in that Facebook post was true. That Facebook post was the basis for this claim. The fact of the matter is, that there is no evidence of any roles being removed from the Complainant or of him being discriminated against in relation to the application for any role. Furthermore, there is no evidence to show that any of the issues he complains about were linked to his disability.  Therefore, he has not established a prima facia case, and his complaint must fail.

4 Complainant’s witness evidence

Mr John Douglas

Mr John Douglas set out his background for the Court. He confirmed that he acted in a representative capacity at a number of meetings for the Complainant.  He confirmed that the first meeting he attended with the Complainant was 13 September 2022 in the Ballymascanlon Hotel with Mr Pollock in person and Mr Grifith attending through zoom.

Mr Pollock raised the issue of the face book post, but it was made very clear that they were not going into that. That was a matter for Unite to raise directly with the person who posted it. The next issue was the Complainant’s role or lack of role and the fact that his job had been taken away from him. Mr Douglas stated that there was a long discussion about the Complainant’s role in Unite. He expressed concern that the Complainant’s role had been taken away from him and that this was common knowledge in the Trade Union movement. He stated that it was an absolute disgrace that a Trade Union would treat one of its long serving employees of 21 years in such a fashion. He stated that the Complainant had given great service to the Trade Union across a whole range of campaigns, from Repeal the 8, to Apollo House, to Right2water. The meeting ended on the basis that the Respondent would get back to them, but they never did.

The next meeting was 23 September 2022 in Unite’s head office in London. In attendance at the meeting was Mr Douglas, the Complainant, Ms Cartmail and Ms Kielim. There was a procedural debate at the start of the meeting as to whether the meeting was on or off the record with prejudice or without prejudice. Mr Douglas stated that from his perspective every meeting he attended he made clear that it was on the record and with prejudice. It was his evidence that the Complainant outlined his position. The meeting got a little bizarre as he was asked to explain exactly what his job was and if he could tell them what his role is within Unite. He was then asked how he got the job, was it advertised, did he have a contract of employment or a job description. He stated that it got quite uncomfortable sitting there listening to somebody’s job being deconstructed. They then questioned him about his doctor did he know him long and then further questions about previous medical issues. It was a strange meeting to which there was no outcome. Mr Douglas stated that at the end he asked where we go from here and the response was Mr Pollack would be in touch and the Complainant could raise a grievance if he wanted.

The next meeting Mr Douglas attended was in Malahide in February 2023. This was a hearing of the Complainant’s grievance. Mr Douglas stated that at the end of the meeting he was told they could expect to hear something in about five days or maybe a bit longer, but they never received the outcome of the grievance procedure.

Mr Douglas stated that late February 2023 he received a phone call from Mr Hughes who wanted to arrange a remote meeting with the Complainant. The meeting was arranged and Mr Douglas attended with the Complainant in his house.  Mr Douglas said he assumed the call was about the Complainant’s grievance.  Mr Hughes raised the fact that the Complainant was applying for the Regional Secretary job and that it was causing a lot of anxiety in the UK. He suggested that they try and fix it before the interviews the following week. Mr Douglas stated that he expressed surprise at the idea of fixing it in such a short timescale when they hadn’t managed to fix it up to that point. It seemed to him that it was being suggested that a deal could be done to get the Complainant off the pitch.  Mr Hughes said he would see if he could arrange something. Mr Douglas’s evidence was that he re-affirmed their position that the Complainant just wanted his duties back.

The next meeting was in London on 14 April 2023. Mr Hughes and Ms Kielim were in attendance, and he accompanied the Complainant to the meeting. The meeting started with the usual procedural processes and whether it was on or off he records with or without prejudice. The meeting started with the Complainant explaining that he just wanted his job back.  The Respondents then raised the question as to what if a deal/ exit package was forthcoming and there was some discussions around what that might look like. Pensions were mentioned, cars, gardening leave but the conversation got bogged down in the pension issue and death in service benefit. They were still maintaining their position that the Complainant was just looking to get his job back, but he did indicate that if management had something they wanted to put to the Complainant they should put it to him in writing. They said they would, but they never did. Nothing ever materialised from any of the meetings. Mr Douglas confirmed that every meeting he attended he requested that the Complainant’s duties that he had before he was absent on sick leave be returned. To the best of his knowledge this has not happened.

Mr Harty SC in cross examination noted that the Complainant’s evidence was that Apollo house campaign had taken place in 2016/2017 and repeal the 8th was no longer a campaign and that the Right to water legislation had been enacted around 2018 and asked Mr Douglas what roles he was aware of that the Complainant was carrying out as Senior Officer between 2018 and 2021.  Mr Douglas stated while he would not know specifically what he was doing he was aware that he was the campaign manager and was out in front of the media on issues like poverty, low pay, union recognition.  Mr Douglas confirmed that the Complainant had discussed with him the fact that he had raised the possibility of the Dundalk role as an option. In response to a question from Mr Harty SC about the return-to-work meeting, Mr Douglas stated that his sense at that time was that the Complainant felt things were different and that he might need Mr Douglas’s assistance in the future.

He confirmed that the first meeting he represented the Complainant at was the Ballymascanlon meeting which occurred after the Facebook post which was posted on 11 September 2022.  The post was discussed at the start of the meeting. The Complainant confirmed that Dundalk was no longer an option at that meeting, and it was agreed at the meeting that it was off the table. The witness accepted that at the time of that meeting there was no pressure in relation to the Dundalk position.  He confirmed that the Complainant’s return to work was gradual over a four-to-six-week period from 22 July 2022 which at a minimum would have brought him to mid to late August 2022.  The witness accepted that Unions could change duties and change direction in terms of its priorities. They can also change policy and that normally comes thought the members at conferences.  He confirmed that it was mentioned at a number of the meetings that he attended that there was a new General Secretary and that she had different priorities to the previous incumbent.

In terms of work being removed from the Complainant Mr Harty SC asked what political work had been removed and who was doing it if the Complainant was not.  The witness stated that it was his understanding that Mr Fitzgerald was doing it. It was put to him that Mr Fitzgerald was not doing it. The witness accepted that the Complainant in his role as a Senior officer had a lot of autonomy and that he had instigated and directed campaigns on behalf of the Respondent. When asked why the Complainant was not instigating campaigns when he returned from sick leave, he stated that he understood this was because of the whiteboard meeting with Mr Fitzgerald where he was informed that there was a new strategy and that the Complainant was not to be part of it.

In respect of the grievance meeting held in February 2023 he stated that they were looking for the Complainant’s job back. The Respondent said they would get back to them in five days, but they never came back. In terms of the November offer of work from his Regional Manager Mr Pollock, Mr Douglas stated that it was his understanding that the Complainant did not think the work on offer was substantial enough or commensurate with his role. In the end the Complainant had looked for four roles, but Mr Pollock could only deliver on two, Education and Legal.

5 Respondent’s witness’s evidence.

Ms Gail Cartmail

Ms Cartmail gave her employment background including holding the position of Acting General Secretary for a period of time in 2017 before returning to her substantive post of assistant General Secretary. In August 2021 following an election there was a change of General Secretary who asked her to take on the position of Executive Head of operations which she held until her retirement in October 2023.  That role reported directly to the General Secretary. It was her evidence that Mr McCluskey as General Secretary divested time and resources of all description including finance into attempting to transform the Labour party in the UK. Ms Graham has a different approach. Her approach was very industrial focussed. She was razor focused on jobs and pay and conditions of Unite’s members. This was a significant change in approach and a change that had to be managed. This involved changes to services that were provided and changes in roles that colleagues carried out.   Previously colleagues had a lot of licence to develop their roles, and they had to be looked at to see if they were compatible with the members needs.  One of the changes was their Union was no longer only aligning with Labour. Political officers had previously in the UK tended to align with Labour Councillors, MPs or potential MPs, that changed dramatically. Under Ms Graham the workers in say a particular industry such as steel were the focus of the campaign and the Union would work with any party that supported their campaign. Prior to 2022 she had engagement with Mr Ogle in relation to a relationship he was cultivating with a doctor’s association.

Ms Cartmail stated that in September 2022 she became aware of media coverage of serious allegations in respect of the treatment of the Complainant which concerned her.  She was aware that the Complainant had a meeting with Mr Pollock that had not been conclusive, and she was struggling to understand what the issues were. It was her decision to email the Complainant and invited him to come and talk with her colleague to colleague. She received a reply by email that was somewhat antagonistic in tone as he seemed to take umbrage at the fact that she had stated in her email “I understand that Dundalk is no longer on the table”.  The Complainant agreed to meet with her. She did ask why the matters weren’t the subject of a grievance and he spoke about the impact of his cancer. It was her evidence that this was an informal meeting, and she does not remember any discussion about the meeting being with prejudice and if it had been said she would have pointed out that it was just a chat with a colleague. She confirmed that she invited him without limits to tell her what was concerning him and to describe his job. His position as Senior Officer did not exist anywhere else in the organisation.  She was trying to understand the concerns in respect of his return to work. She denied that she said she was heading of for two weeks to work for the Labour party. She never worked for the Labour party but did attend their conference where her role was to ensure that Unite’s General Secretary and lay delegation had everything they needed

Under cross examination the Complainant put it to the witness that the Respondent had indicated that Senior Officer ROI was the only relevant post to this case that was filled without advertisement. Ms Cartmail confirmed that in respect of Industrial officers of the Union that was correct. She confirmed that her role was not filled by advertisement and that she was appointed by the General Secretary and her appointment was approved by the Executive Council.  She confirmed that she had previously engaged with the Complainant about a possible merger, but it had come to nothing and that activities like that were carried out not only by Senior Officers but other grades to in regional offices. The Complainant asked the witness why at the meeting in London in September 2022, she had asked him to explain his role. She stated it was because she was interested in understanding more about his role as she had previously only had one contact with him. She was also trying to understand what had motivated the allegations that were made in the public domain. Ms Cartmail confirmed her reasons for arranging the meeting with the Complainant. There were allegations in the public domain that she had concerns about, she had been contacted by a colleague to say that a discussion with the Complainant following a sickness absence had been inconclusive in terms of going forward.

The Complainant asked her if she was aware that an independent doctor had passed him fit to return to full duties. The witness stated that she was aware that occupational health physicians are asked by the Union to look at the demands of the job both mental and physical and that typically after along absence she would expect an occupational health physician to recommend good practise such as a phased return to work. The witness was asked why at the meeting did she bring up a stress related illness from three years previous. The witness stated that she was trying to look at the situation in the round. The allegations in the public domain were very serious but seemed to ignore the fact that during the Complainant’s absence following an election a new General Secretary on a new platform of jobs, pay and conditions had been elected. This resulted in everybody’s duties being subject to consideration, redesign and change potentially. The witness confirmed that she was aware that the Regional Secretary Mr Pollock has issued a letter in respect of Mr Ogle’s duties on 2 November 2020. The Complainant confirmed that she was aware of the letter but was not party to any discussions around the content of same. She confirmed that she understands the new focus for the Union was that the political tail no longer wagged the industrial dog. That was a phrase that was commonplace at the time. The Complainant then took the witness through the Respondent’s structures around rules and policies.

Mr Pollock

The next witness for the Respondent was led in evidence in chief by Mr Faughnan BL. Mr Pollock set out his background as an officer and staff member of Unite and confirmed that he retired in April 2023. His role at time of retirement and during the relevant period of this case was Regional Secretary and Mr Ogle in his position of Senior Officer reported to him.

Mr Pollock stated that in respect of the Complainant’s appointment to Senior Officer there wasn’t a competition nor was there a job description. He confirmed that was unusual. He confirmed that he wrote the email of 18 August 2018 which distributed certain tasks between Mr Browne and Mr Ogle. He confirmed that he was the head of the Union in all of Ireland and that there was no separate head of Union in the Republic. He disagreed with the submission that Mr Ogle was the acknowledged head of the Union in the Republic of Ireland. In respect of the list of jobs Mr Ogle set out as being his duties some of those were one off jobs, others were jobs carried out by other people including Mr Ogle and some were tasks that he carried out. Mr Ogle did not have any staff reporting to him.

Mr Pollock confirmed that he attended the return-to-work meeting with the Complainant on 22 July 22. The issue of the Dundalk option was discussed as was the issue of the Complainant’s GP note which noted that stress could bring a recurrence of his illness.  By the end of the meeting the Dundalk option was more or less of the table. Mr Ogle raised no complaints with him about the return-to-work meeting or about the meeting he had with Mr Fitzgerald. Mr Pollock was asked by Mr Faughnan BL if prior to the 11 September 2022 and the Facebook post he had received any complaints from the Complainant about not having work or having his duties taken from him. Mr Pollocked stated he had not. He also confirmed that he did not do anything to take Mr Ogle’s duties during that period nor was he aware of anyone else who had taken or would have the authority to take his duties. The witness stated that the meeting on 13 September which he and Mr Griffiths attended was about the Facebook post. He had concerns because it was damaging to the Union. He wanted to see if what was contained in the post was the Complainant’s view. However, when it was raised the Complainant responded by saying that it should be raised with the person who had posted it. At that meeting the Complainant did indicate that he felt his duties had been taken from him. The witness confirmed he knew nothing about what was alleged to have happened at the meeting on 22 August or the allegation that there was an express instruction from the General Secretary that the Complainant was not part of the strategic plan. He confirmed there was a strategic plan with the aim of growing membership in the Republic of Ireland as they had been haemorrhaging members for years. At that point in time Mr Fitzgerald was working on a broad outline of the plan which he would have reported to the Irish Executive on and discussed with the witness who was his line manager. He confirmed that each of the nine regions in the Union would have had their own plan.

Mr Pollock confirmed that post the election of Ms Graham there were changes in the Union. The one that most concerned him was that neither he nor any of the officers were allowed to do press releases. They had to go through a central point in London. There was also some centralisation of buying equipment, so the regions lost some of their autonomy.  It was put to the witness that at the meeting in Ballymascanlon he effectively griped about the General Secretary and suggested that she made his position untenable. Mr Pollock stated that the only grain of truth in that statement was that he probably did gripe about not being able to do the press releases locally. He confirmed that at the meeting there were four areas discussed for the Complainant. Education, Legal, Community and European Affairs. He confirmed that one of the areas European affairs, was outside his control so he could never have delivered that, it was a separate department international and EU affairs. The other roles were within his remit, and he agreed Education and Legal and said he would review the sustainability and environmental issue that the Complainant raised as a possibility. He confirmed that at the meeting at the end of October and as set out in his letter of 2 November 2022 the role he was offering the Complainant was a role which covered Education for all of Ireland and Legal for the Republic of Ireland. He confirmed that these posts existed in other regions. The role was at level 10 his existing level. He confirmed that previously the Complainant had been fulltime Education Officer of the Union, and it was his view that the combination of Legal which would be a new area, and Education would be a full-time role at level 10.

Under cross examination by the Complainant Mr Pollock confirmed that in 2018 at the Complainant’s request, he issued an email explaining what the Complainant’s role was. In relation to that list of duties, Mr Pollock confirmed that he believed some of the duties listed were administrative, others were just a signature. He accepted that, in addition to the list of duties that the Complainant had a political role, was on the GPC and executive council of congress and retained education as part of his role.   He confirmed that he was at the return to work meeting and that the minutes from the meeting noted that “BK said for the time being, the situation needs to be put on hold until the next steps are evaluated”. He stated that it was his understanding that the Complainant was coming back to his role. He also confirmed that BK referred to Barbara Kielim. He confirmed that the next meeting was the Ballyscanlon meeting. He stated that he did not accept that the statement attributed to BK meant his job was being put on hold because that would have been his decision and at that time, he did not take any responsibilities away from the Complainant. It was put to the witness that if the Union was moving away from politics why not give the Complainant his other duties. Mr Pollock stated that it is his position that at no stage did he take the Complainant’s role away from him.

Mr Pollock confirmed that at the time the Complainant returned to work there was a fundamental change in the Union that went from a more political organisation to an industrial movement. The whole emphasis was put on members, developing reps, organising and work, voice pay which was the term used by the General Secretary.

In response to further cross examination Mr Pollock reiterated that at no stage did he take the Complainant’s responsibilities away from him. If he had he would have to had notified a lot of people in the region that he was no longer doing a specific role but that never happened as he never removed any of his role.

Mr Fitzgerald

The next witness for the Respondent was Mr Fitzgerald who was led in evidence in chief by Mr Harty SC. Mr Fitzgerald set out his background in the Trade Union Movement for the Court and his previous engagements with the Complainant.  Mr Fitzgerald confirmed that he had applied for the position of RCO and was successful in June 2022. He was informed by the Regional Secretary that he was the preferred candidate subject to approval by the Executive Committee of the Union. Mr Fitzgerald set out how he transitioned into his new role, confirmed he had a brief conversation with the General Secretary who confirmed to him that he should start the planning work for the business case that would be growth and development. He requested and received the assistance of another official to assist with the transition.

The witness confirmed that the first time he saw the Complainant after he took up his new role was at the ESB Network Technicians Congress which was early August 2022. One of the representatives informed him that a discussion was going on in another area and when he went over to join the discussion, he saw the Complainant there. He confirmed that he contacted that Complainant later that week and spoke to him on the phone. One of the things he queried was why the Complainant was at the technician’s conference as an official wouldn’t normally go to a conference in an area they were no longer involved. The Complainant confirmed that it was a personal thing. Mr Fitzgerald stated that the Complainant’s involvement in the discussion that took place at that conference had been very helpful to him.  He went on to say that he had a meeting in his office with the Complainant on 24 August 2022, this is the meeting that is being referred to as the white board meeting. They had a catch-up conversation about what had been going on for both of them. They had some chat about Mr Ogle’s role, and he had indicated that he had an interest in education, legal and community. Mr Fitzgerald stated that he understood based on a conversation he had with the Regional Secretary that it was felt there was ambiguity and challenges around the Complainant’s role and the Regional Secretary had suggested that he have a chat with the Complainant.

They then moved on to talking about work. Mr Fitzgerald stated that he explained he was coming to terms with his new role and trying to analyse the organisation and plan a strategy. He explained that he was looking for extra resources so was aligning the strategy to that. He spoke about Union density in different areas and planning to increase that and how you would go about it. On the board he sketched out an explanation of ‘turf’ as that expression was used in the Union, he used hypothetical figures at sectoral level in different sectors, then drilling down to enterprise levels so you could set targets and identify the type of resources you would need to put in and the return you could expect. They discussed different sectors, then the Complainant asked him about what about political work because everything you have mapped out is industrial.  The witness stated that his response was that he couldn’t speak to political as that was not his area but that he was aware that the General Secretary was linking resources to industrial work. They had some discussion about political work such as campaigning for collective bargaining and how you would go about it, and also about housing.  He stated that he believed that to advance those issues there would have to an industrial rationale.  It was a good discussion and at the end the Complainant stated that it was all very interesting stuff. He asked if he could take a picture of what was on the white board and there was no issue with that. They spoke about a follow up meeting. The Complainant sent an email the following day stating that he appreciated the efforts the witness had made and noting he could not understand why nobody had engaged with him about his role. Mr Fitzgerald stated that a few days later he had a quick chat with the Complainant who indicated that he had a concern that people in the organisation were out to get him but confirmed that it he was not referring to Mr Fitzgerald but people higher up in the organisation. Mr Fitzgerald stated that he suggested to the Complainant that he would work with him the same way his predecessor Mr Browne had.  A short time later the Facebook post happened. The next time he encountered the Complainant was at the policy conference on 19 September 2022 where he was sitting at the same table as the Complainant.

Mr Fitzgerald stated that the Complainant had never said to him that he had taken his role but at a later date in February 2023, the Complainant talked about him interfering in his area of work arising from an incident around the use of a rest room. Mr Fitzgerald stated that he had not taken over some of the Complainant’s role. His role was industrial which he had taken over from Mr Brown.   He confirmed that there would be some overlap between both their roles. In terms of the list of duties that the Complainant had identified Mr Fitzgerald said some of them were one offs and until recently the only one of the tasks listed, he did was signing off on industrial action. More recently he has provided cover for leave and covered issues like sick leave and expenses.

Under cross examination by the Complainant Mr Fitzgerald clarified that he was drawing a plan for the Republic of Ireland that would be given to the Regional Secretary as part of his regional growth strategy. He confirmed that he sent the plan by email to the Regional Secretary on 2 December 2022. He confirmed that he did not specifically send the Complainant a copy of the plan before he sent it to the Regional Secretary.  In response to a question from the Complainant Mr Fitzgerald denied saying to the Complainant that he had been asked by the General secretary to draw up a strategic plan and that the Complainant was not to be part of it. The Complainant took Mr Fitzgerald through various emails he had sent and received in respect of the work of the Republic of Ireland office from the time he took up his position. Mr Fitzgerald stated that he was trying to get a better understanding of Unite’s reach in various areas and that’s what the emails were about.

In terms of the draft organisation review that was submitted and the list of roles and who caried them out contained in it.  Mr Fitzgerald confirmed that it did not contain any roles attributed to the Complainant.

In re- examination Mr Harty SC asked the witness at the point the draft document was produced in December what his level of engagement with the Complainant was. The witness confirmed that following the Facebook post the previous September he had little or no engagement with the Complainant.

Ms Kielim

The final witness for the Respondent was Ms Barbara Kielim who confirmed that her role with the Respondent was Director of Human Resources. She confirmed that Mr Griffiths reports to her and that she now reports to Ms Cartmail’s replacement. It was her evidence that following the election of the General Secretary there was a change in direction, and she was aware that the Assistant Secretary for Legal and Political Affairs position was abolished as the newly appointed General Secretary wanted a different focus on political in terms of being linked to members, which was different to what was there previously. The witness confirmed that she had a conversation with the General Secretary who was keen to have a transparent and professional Union and from her perspective as HR Director that meant tightening up recruitment processes and ensuring that they were fair and transparent. Another change was the centralising of messaging to members and media communications.  Ms Kielim outlined her role in the correspondence that initially went to the Complainant about the Dundalk post. The letter was sent reflecting the normal practice when someone drops down a grade. Once she realised that that there had been an agreement between the Complainant and the previous General Secretary that there would be no diminution of salary, she sent a further letter reflecting same. The witness confirmed that she was involved in the return-to-work meeting because the Complainant had been off work for some time, she had been talking to him while he was on sick leave, and she thought her presence might be helpful.

Ms Kielim confirmed that from her perspective she thought it was a positive meeting. The Complainant confirmed that he did not want to go to Dundalk, and the context in which he had originally requested same.  She stated that it was her understanding that on doctor’s advice he would return to work on a phased basis. It was her evidence that her next engagement with the Complainant was at the informal meeting with Ms Cartman. At the meeting it was agreed that the parties would keep their own notes but that there would be no formal minute of the meeting as it was an informal meeting.  At the meeting the Complainant set out his concerns and Ms Cartman raised the issue of the Facebook post. The Complainant produced a medical certificate which the Respondent hadn’t previously seen confirming that he was fit to return to work.

The witnesses next engagement with the Complainant was in relation to his grievances. The first grievance was 11 November 2022 and that was in relation to the change of roles, the second was 28 March 2023 and that was in relation to the recruitment for the Regional Secretary position. The third grievance was in April. In respect of the first grievance the witness stated that she acknowledged same and in agreement with the Complainant, it was agreed to delay the hearing to facilitate scheduled leave. That grievance was part-heard on 8 February 2023. There was then what she understood to be a without prejudice meeting in April. She felt it had to be a without prejudice meeting as they were trying to discuss issues without comprising any claims that might be made. The witness confirmed that the Complainant did not make a complaint to HR that his role or the work he had been doing was taken from him.

Under cross examination the witness outlined that discussions she had with the Complainant while he was out sick and confirmed that the position in Dundalk was an offer arising from a request made by the Complainant. She confirmed that her attendance at a back to work meeting was not a unique occurrence nor was it an irregular occurrence and that she does engage in same from time to time. Ms Kielim confirmed there is a back to work form, she did not complete it and best she can recollect it was completed by Mr Pollock. The witness confirmed that occupational health had confirmed that the Complainant was fit to return to work albeit on a phased basis.  The witness was asked what she had meant at the return-to-work meeting when she is reflected in the minutes as having said “BK said for the time being the situation needs to be put on hold until the next steps are evaluated”.  Ms Kielim stated that she was referring to the phased return, which was not just about time, but also about work. The witness was asked if the Respondent has a policy whereby staff on long term sick leave are notified of vacancies that arise. She confirmed that it does not have a policy, but it has a practise in respect of staff on maternity leave. The witness confirmed that she was not aware of the letter Mr Pollock sent out on 2 November 2022 and that she assigned Mr Hughes to hear the Complainant’s grievance which she received on 11 November 2022.  The witness confirmed that she was aware that no decision had issued from the grievance that was heard on 8 February 2023.  She confirmed that she was aware that the Complainant sought to raise process issues with the appointing body in respect of the selection process for Regional Secretary.

6 The Burden of Proof

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“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.”

This Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a 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 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 is no infringement of the principle of equal treatment.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. 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.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

7 The applicable Law

Section 6 the Act

 Discrimination for the purposes of this 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,

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

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

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

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

• (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),
• (b) that they are of different [civil] status (in this Act referred to as “the [civil] status ground”),
• (c) that one has family status and the other does not (in this Act referred to as “the family status ground”),
• (d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),
• (e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),
• (f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),
• (g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),
• (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),
• (i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).

[(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”

Issue to be determined

 The questions for the Court to consider are

1. a) Has the Complainant identified a prima facia breach of the act during the cognisable period thereby shifting the burden of proof to the Employer? If so.
2. b) Has the Respondent established that the Acts complained of were not linked to the Complainant’s disability.

8 Discussion and Decision

Most facts in this case were disputed even down to the role the Complainant carried out prior to going on sick leave. One of the few facts not disputed was that the Complainant had a disability at the relevant time and Occupational Health recommended that he come back to work on a phased basis over a four-to-six-week basis. He returned to work towards the end of July 2022.

During the hearing, it was clarified that once the Complainant indicated Dundalk was not an option for him that issue was taken off the table. The sworn evidence before the Court was that strategic change had occurred in the Union once the new General Secretary took over in August 2021. The change included changing the previous political focus, centralising media and communications and running campaigns linked to workplaces rather than wider issues. This had a knock-on effect on the roles of several individuals employed by the Respondent. Mr Pollock in his evidence confirmed he was one of the people affected. He also confirmed that he did not remove any duties or re-assigned any of the Complainant’s duties. Mr Fitzgerald confirmed that he had not taken on any of the Complainant’s duties, he had taken over the role previously carried out by Mr Brown. No other person was identified to the Court as having taken over or carried out the Complainant’s duties post his return from illness. The Complainant had met with Mr Fitzgerald prior to the Facebook message and Mr Fitzgerald had set out his understanding of the change happening in the Union. It was not disputed that the Complainant after that meeting had sent an email thanking Mr Fitzgerald for his engagement.

The Complainant believed that his job had changed and nobody from senior management had sat down and discussed this with him. He was sceptical of the suggestion that the Union following the election of a new General Secretary had changed focus and that any change to his role arose from the consequences of that. Following the instruction from Mr Pollock to take up duties relating to Education and Legal, the Complainant lodged a grievance in November 2022. There was agreement between the parties that the first meeting would be delayed facilitating pre-arranged holidays and it did not take place until February 2023.

While the Complainant pointed to the fact that he did not receive an outcome following the meeting in February 2023, the Respondent’s position is that following the grievance hearing they engaged in off the record discussions with the Complainant to try and resolve the issues. The Complainant’s submission and his witness evidence was that they did not participate in any off the record meetings, and from their prospective all the meetings were on the record.  The Respondent submitted that following the WRC hearing they had offered to conclude the grievance procedure, but the Complainant declined to do so.  The Court in considering these issues noted that the Complainant has been unable to establish a link between his disability and the issues. The mere fact that he was covered by one of the protected grounds is not enough to establish a prima facia case.

The issue between the Union Chair and the Complainant arose from the Facebook post and the Chairman’s response to same at the Unite Ireland Conference in Malahide a short time later. There is no suggestion that it was linked to the Complainant’s disability.

While these issues fall outside the cognisable period, they frame the context within which the alleged breaches during the cognisable period need to be considered.

The Complainant’s issues in respect of the competition for the Regional Secretary which does fall within the cognisable period are.

• 1) He was approached before the interview and asked to withdraw and or take a package
• 2) The Chairman who he believed had very publicly displayed a bias against him was the Chairman of the interview panel.
• 3) As a result of the Chair stepping down his interview board only had four members, and the other applicants interview board had five members.
• 4) He had a live grievance and asked for the competition to be delayed pending the result of his grievance and it wasn’t.

The cognisable period in line with the requirements of the Act is 19 November 2022 to 18 May 2023. The acts of discrimination being relied on by the Complainant in that period centres around the competition to fill the position of Regional Secretary Ireland.

In respect of the first issue raised above while it was not disputed that such a conversation took place the Complainant has failed to establish a causal link between the impetus for that meeting and his disability. The Complainant’s own submission states that he had refused to take on duties assigned to him in November by his Regional Secretary and had a grievance in being at that time.  The evidence before the Court was that the Respondent was engaging with the Complainant trying to resolve his issues and this was one of the options they were willing to explore. In respect of points two and three the Chairman had crossed paths with the Complainant over the Facebook post and did step down from the panel for his interview. The Facebook post was the catalyst not the Complainant’s disability. The Complainant has not established a causal link between the actions and his disability.

The fourth point that the competition was not delayed because he had a grievance. The Complainant has again failed to establish a causal link between not delaying the competition and the Complainant’s disability. 

The Complainant may well have had a genuine grievance about the fact that he was being held to account by elements within the Respondent’s organisation for a social media post he did not post. However, that does not constitute discrimination on the grounds of disability and therefore his complaint must fail.

Taking all the above into account the Court determines that the appeal fails. The decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
TH	______________________
6 October 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Therese Hickey, Court Secretary.