Complainant

Respondent

Anonymised Parties

A Complainant

A Third Level Institution

Representatives

A Parent

Rosemary Mallon BL, instructed by Mason Hayes & Curran

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00072587-001

19/06/2025

The complainant made a complaint that she was discriminated against on disability grounds after she applied for a course with the third level institution. The complaint was received by the Workplace Relations Commission (WRC) on 19th June 2025.

The complainant alleges direct and indirect discrimination on the disability ground (dyslexia). There are several parts to the complaint as follows-

·         That her disability is not considered in round zero of the Central Applications Office even though she attended a pre-third level course as an alternative route onto the course.

·         That the respondent has strict and stringent requirements for entry which are above those for other colleges and the higher requirements are discriminatory.

·         That the refusal of the respondent to combine her leaving certificate results with the pre-third level course is discriminatory.

Ms. Mallon, on behalf of the respondent, raised two preliminary matters. Without prejudice to these matters, the representative denies that the respondent discriminated against the complainant.

Summary of Complainant’s Submission on Preliminary Matters

The complainant’s father outlined exceptional circumstances on the notification procedure and asserted that it should not apply, and the case should proceed. He said the respondent had confirmed in an e-mail that the leaving certificate would be excluded, as early as May 2025.

He said there was further correspondence with the respondent on 21st May 2025 which misled the complainant as to the proper respondent. He said the correspondence of 15th June 2025 ensured the respondent was on notice of the discrimination concerns. This correspondence was prior to the submission of the complaint form and therefore the respondent was not prejudiced. He referred to further correspondence to obtain the information details of the President of the third level institution. He said it would be unfair if the complainant could not proceed and avail of the protections of the Equal Status Act.

Summary of Respondent’s Submission on Preliminary Matters

Ms Mallon referred to the respondent’s submission on the two preliminary matters. It was submitted that the case concerned the administration of justice and there were strict requirements to be followed. The Act states that the ES1 Form “shall” notify the respondent within 2 months of the prohibited conduct and allow for the respondent to return the ES2 Form before a complaint can be submitted to the WRC. It was submitted that there were no exceptional circumstances outlined by the complainant’s side and relied on the Labour Court decision in Chicken Castle Limited Chicken Club v. Suman Bhurtel DWT2536 that ignorance of the law is no defence.

It was submitted that the earlier correspondence in May & June 2025 from the respondent were advisory and not a formal refusal of a course placement, particularly as course placements took place in August 2025. It was submitted that the notification requirements were not in accordance with the Act and that the complaint form had been submitted prematurely.

The Law

Notification Requirements

Section 21 (2) of the Act sets out the procedure to notify the respondent through the ES 1 Form in advance of making a complaint to the WRC. Where there are exceptional circumstances, this notification process need not apply depending on the relevant circumstances. These circumstances include whether the respondent is likely to be already aware of the matter and any risk of prejudice to the respondent’s ability to deal with the complaint.

Premature Complaint

Section 3 (1) of the Act states-

For the purposes of this Act discrimination shall be taken to occur-

(a)    where 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) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which-

(1)    exists,

(2)    existed but no longer exists,

(3)    may exist in the future, or

(4)    is imputed to the person concerned,

(b)…………..

or

(b)    where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

Findings On Preliminary Issues

Notification Requirements

In general, a complaint under the Equal Status Act proceeds as follows- 

·         The notification requirement is completed

·         A complaint is filed with the WRC

·         A hearing is scheduled and takes place,

·         A decision issues.

The steps outlined are often short-circuited, as agreement can be reached or a complaint not pursued once the respondent/complainant have fully considered matters. The main purpose of the notification requirement is to ensure all relevant information is considered prior to any litigation.

It is a fact that the notification requirements were not followed as the ES1 Form was submitted after the complaint was submitted to the WRC. The ES2 Form in response to the questions raised in the ES1 Form was returned with answers to the complainant on 16th July 2025.

The Act provides that the notification requirements shall not apply if ‘exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complaint to the extent specified in the direction, ……..’

The Act then further provides- ‘shall have regard to all the relevant circumstances, including-

(1)    the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(2)    the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

The complainant’s case is that the respondents are not prejudiced as they were fully aware of the complaints prior to the WRC Form being submitted. At the hearing, the complainant’s father also referred to the respondent using technical legal issues to obstruct and delay the case. In essence, the exceptional circumstances were that the notification requirements should not apply as the respondent was already on notice and is not prejudiced. Also, any obstruction or further delay would mean the complainant being denied the protections of the Act and an opportunity to secure a course place in the current academic year.

Although, the notification requirement does not have to apply, I am concerned of the implications of this when all the circumstances are considered. The notification requirement did take place although after the complaint was made. These circumstances could have implications on the evidence (ES1 & ES2) that can be considered. Section 26 of the Act provides for the supply of information and specifically refers to the notification requirement. Due to the post notification, this complicates whether evidence after the complaint can be relied upon by either party. Although the emphasis in the Act is not to prejudice the respondent, the complainant could also be restricted in having to rely on evidence prior to the complaint.

Premature Complaint

I have reviewed the correspondence between the complainant and respondent of May and June 2025. These communications tend to show that the issue of a course place was not decided and were advisory in nature. Also, the complainant herself refers to possible future scenarios and attempts to engage/resolve before round zero of the placements.

Due to the course places not being confirmed till August 2025, this may also impede the investigation of the substantive complaint as the dates of discriminatory treatment can be central and decisive. Complications may arise as to whether a complaint or part complaint can be made in advance. Again, there could be a restriction on evidence which could impede the proper investigation of the complaints.

The definition of discrimination refers to how comparable persons are treated. Comparable treatment may not arise until August 2025 when placements are made. Even if the complainant does not intend to rely on evidence post complaint, it is often the case that an Adjudicator may also be restricted in obtaining evidence post complaint as per Section 34 of the Act. Any restriction on evidence post complaint could also prejudice the complainant herself.

As the alleged complaints of discrimination are still in time, I am satisfied that the complainant is not statute barred from making a fresh complaint as per her statutory rights under the Act.

For the reasons outlined, I decide that I do not have jurisdiction to hear the substantive complaint.

I decide that I do not have jurisdiction to hear the substantive complaint.

Discrimination Disability