ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00059992
Parties:
| Complainant | Respondent |
Parties | Jennifer Oloo-Omee | Central Bank Of Ireland |
Representatives |
| Darragh Whelan, Employee Relations Team Member |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00072635-001 | 20/06/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00072635-002 | 20/06/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00072635-003 | 20/06/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00072635-004 | 20/06/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00072635-005 | 20/06/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00072635-007 | 20/06/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022 | CA-00072635-008 | 20/06/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00072635-009 | 20/06/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00074740-001 | 24/08/2025 |
Date of Adjudication Hearing: 24/03/2026
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
At the outset of the hearing, I informed both parties that I would first determine the issue of time limits before proceeding to the substance of the complaints. Given the number and breadth of complaints before me, it was necessary to establish jurisdiction at the beginning in order to ensure an orderly and expeditious hearing.
Section 41(6) of the Workplace Relations Act, 2015 provides as follows in respect of time limits:
“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
Section 41(8) of the Workplace Relations Act, 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, a Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:
“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than six months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”
The complaints were presented on 20 June 2025, meaning that, in accordance with section 41 of the Workplace Relations Act 2015, the cognisable period is 21 December 2024 to 20 June 2025.
Any alleged contravention before 21 December 2024 is out of time unless the Complainant establishes reasonable cause for her failure to lodge her complaints within the statutory six-month period.
The Complainant advanced three numbered grounds in support of extending time:
- that her mental health related sick leave prevented timely filing,
- lack of knowledge of the WRC process, and
- reliance on a “date of knowledge” concept.
I address each of these grounds sequentially.
- Health related grounds
While the Complainant stated that she was unable to lodge her complaints because she was on an extended period of sick leave arising from mental‑health difficulties, I noted that no medical evidence was presented to support this. I further noted that many of the matters complained of occurred in 2023 or well before December 2024 and am of the view that her subsequent illness could not have prevented timely filing of those matters. I therefore find that the Complainant’s health does not establish reasonable cause for the delay.
- Lack of knowledge of WRC procedures
The Complainant stated that she did not know how to lodge a complaint with the WRC. However, it is well established that lack of knowledge of the law or of procedural mechanisms does not amount to reasonable cause.
In the first instance, information about the WRC complaints process is publicly accessible. Furthermore, the Complainant joined UNITE on 29 November 2024, affording her access to expert advice. She has not demonstrated that she was prevented from seeking guidance. Accordingly, this ground does not constitute reasonable cause.
3.“Date of knowledge” argument
The Complainant relied on a “date of knowledge” concept derived from the Statute of Limitations Act 1957. This concept does not apply in the WRC context. The Workplace Relations Act 2015 governs the time limits for these complaints and provides that the six-month period runs from the date of the alleged contravention, not the date on which the Complainant became aware of it.
Conclusion
For all of the reasons set out above, I find that the Complainant has not established reasonable cause for her failure to lodge her complaints within the statutory timeframe and that I have jurisdiction only in respect of matters arising on or after 21 December 2024.
The Complainant as well as one witness on behalf of the Respondent gave evidence on affirmation and the opportunity for cross-examination was afforded to the parties.
Background:
The Complainant commenced employment as a Financial Planning and Analysis Associate (BE Level) on 13 February 2023 and referred multiple complaints to the Workplace Relations Commission arising from her employment and subsequent resignation. She alleged discrimination on the grounds of race, gender and disability, asserting that she was denied managerial support, required to perform duties at BP3 level without appropriate pay, and that no reasonable accommodation was made for an alleged disability. She further complained of breaches of the Organisation of Working Time Act in relation to annual leave, rest breaks and hours of work, penalisation under the Sick Leave Act 2022, and a failure to provide written notice of changes to her terms of employment. In addition, she claimed that the cumulative treatment she experienced forced her resignation and constituted constructive dismissal. The Respondent rejected all allegations, denying any discriminatory treatment, statutory breaches or unreasonable conduct, and contended that the Complainant resigned before internal and external grievance processes were exhausted. |
Summary of Complainant’s Case:
In this case, the Complainant referred several complaints to the WRC arising from her employment. She stated that she was treated less favourably than a white colleague at the same BE grade because that colleague continued to receive structured support from a BP3‑level manager while she did not, and she attributes this disparity to discrimination on the ground of race. She further stated that she was discriminated against on the ground of disability, asserting that she suffered from hypertension and that the Respondent failed to reasonably accommodate this condition. In addition, she alleged that between January and October 2024 she performed duties equivalent to those of a BP3 manager—including preparing capital budgets, engaging in forecasting, carrying out year‑end responsibilities and responding to audit queries—yet continued to be paid at a BE level. She stated that this amounted to unlawful discrimination on the grounds of race and gender. The Complainant also asserted that she was penalised for availing of statutory sick leave, that the cumulative treatment she experienced forced her to resign and constituted constructive dismissal, and that when she assumed what she regarded as BP3 duties she was not provided with written notice of a change to her job description in accordance with the Terms of Employment (Information) Act. She further asserted that she did not receive her statutory annual leave entitlements for the leave year commencing 1 April 2024 and did not receive the daily rest breaks or weekly working‑time protections required under the Organisation of Working Time Act. |
Summary of Respondent’s Case:
The Respondent rejected the allegations of race discrimination, stating that any differences in managerial support were a consequence of organisational structure and a vacant BP3 post, not race. It was also not accepted that the Complainant performed BP3‑level work for equal pay purposes, asserting instead that while all members of the team contributed to budgeting, forecasting, and audit processes, the complexity and responsibility of those tasks varied by grade, and the Complainant’s duties remained consistent with BE level. The Respondent also disputed that the Complainant had a disability requiring reasonable accommodation within the meaning of the Employment Equality Acts and denied any failure to accommodate her. The Respondent rejected the Sick Leave Act complaint on the basis that the Complainant never invoked statutory sick leave at all, having instead been paid 92 days under the Respondent’s own enhanced contractual sick‑leave scheme. The Respondent also denied that the Complainant was forced to resign, stating that they progressed her grievance through Stages 1–3, instructed her correctly to proceed to Stage 4 (a WRC referral), and confirmed that they were willing to process a second, identical internal grievance filed on 21 April 2025 once she was medically fit. They highlighted that instead of awaiting either process, the Complainant resigned and commenced new employment the following day. Regarding the Terms of Employment (Information) Act, the Respondent stated that there was no obligation to amend her job description as she never assumed BP3 duties. In relation to her Organisation of Working Time Act complaint concerning annual leave, the Respondent stated that there was no outstanding liability. With regard to the complaint concerning rest breaks and weekly working hours, the Respondent stated that she did not work in excess of the 48‑hour weekly limit during the cognisable period and received the statutory breaks required by the Act. |
Findings and Conclusions:
CA-00072635-001: Under the Terms of Employment (Information) Act 1994–2014 in Ireland, a "term and condition" of employment refers to the essential elements that make up the employment relationship between an employer and an employee, which must be provided in writing. These include core details such as: Core Terms (must be given within 5 days of starting work): a) the full names of the employer and the employee; (b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires; (d) the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000; (e) the number of hours which the employer reasonably expects the employee to work— (i) per normal working day, and (ii) per normal working week (f) where sections 4B to 4E (in so far as they are in operation) of the Payment of Wages Act 1991 apply to the employer, the employer’s policy on the manner in which tips or gratuities and mandatory charges (within the meaning of section 1 of that Act) are treated, (g) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is employed at various places or is free to determine his or her place of work or to work at various places; (h) either— (i) the title, grade, nature or category of work for which the employee is employed, or (ii) a brief specification or description of the work; (i) the date of commencement of the employee’s contract of employment; (j) any terms or conditions relating to hours of work (including overtime); (k) where a probationary period applies, its duration and conditions. Remaining Terms (must be given within 1 month): These make up the broader “terms and conditions” and include: · a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order, · that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section, · the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval, · any terms or conditions relating to paid leave (other than paid sick leave), · any terms or conditions relating to— - incapacity for work due to sickness or injury and paid sick leave, and - pensions and pension schemes, · the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice, · a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made · the training entitlement, if any, provided by the employer, · in the case of a temporary contract of employment, the identity of the user undertakings (within the meaning of Directive 2008/104/EC of the European Parliament and of the Council of 19 November 20085 on temporary agency work), when and as soon as known, and · if the work pattern of an employee is entirely or mostly unpredictable, the statement shall inform the employee of — - the principle that the work schedule is variable, the number of guaranteed paid hours and the remuneration for work performed in addition to those guaranteed hours, - the reference hours and days within which the employee may be required to work, and - the minimum notice period to which the employee is entitled to before the start of a work assignment and, where applicable, the deadline for notification in accordance with section 17 of the Organisation of Working Time Act 1997, and - where it is the responsibility of the employer, the identity of the social security institutions receiving the social insurance contributions attached to the contract of employment and any protection relating to social security provided by the employer. Findings: In the instant complaint, the Complainant alleged that the Respondent failed to inform her in writing of a change to her job description when, she stated, she assumed the duties of the BP3 Manager between January and October 2024. However, as established in my analysis of the Complainant’s equal pay complaint below (CA‑00072635‑004), the evidence did not support her contention that she was performing BP3‑level work during that period. In any event, any alleged contravention arising before October 2024 falls outside the cognisable period, and no evidence was presented to show that she undertook the full suite of BP3 duties after that date. The Complainant also stated that she performed some, though not all, BP3 duties between February and April 2024, which falls within the cognisable period. Even accepting this at its height, I noted that her contract of employment expressly provides that: “You must be prepared to undertake such duties as may be assigned to you by the Central Bank from time to time (including alternative duties where business needs require this). Such duties can be outside the area of your normal work.” In light of this clause, I am of the view that the assignment of certain additional duties—short of the full BP3 role—did not require any amendment to her job description. Accordingly, I find that there was no obligation on the Respondent to issue a written change to her job description, as the Complainant remained employed under the terms of a contract that expressly contemplated the allocation of such duties. I therefore find that the complaint is not well founded. CA-00072635-002: Section 6 of the Act states as follows: (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 insubsection (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 ofparagraph (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— (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”), Section 77(5)(a) of the Acts provides that a claim for redress in respect of discrimination may not be referred after the end of the period of 6 months from the date of occurrence of the discrimination to which the case relates or, as the case may be, the date of its most recent occurrence. The Complainant referred the complaint under the Acts to the WRC on 20 June 2025, and therefore the cognisable period in relation to the complaint is to 21 December 2024 to 20 June 2025. Thus, if the Complainant in this case can establish that an act of discrimination on the ground of race occurred between 21 December 2024 to 20 June 2025, I may consider allegations that arose prior to that period and to consider if there was a continuum of discriminatory acts as provided for under s 77(5)(a) of the Acts. Regarding the burden of proof in relation to this complaint, Section 85A provides that, “(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. In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Labour Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the Court held that, “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”. In the matter of Melbury Developments Ltd v Valpeters EDA 09/17, the Labour Court commented that, “Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.” The Complainant in this case stated that the Respondent discriminated against her on the grounds of race when compared to a colleague of a different race because of the difference in support provided by the Respondent to her comparator. The Complainant stated that the BP3 manager to whom she reported went on a period of sick leave in January 2024 and that following his return to work he moved to a different team and that this BP3 post remained unfilled. She explained that, following the departure of that manager, no interim arrangements were put in place, and she was left without the oversight ordinarily provided at BP3 level. The Complainant stated that as a result following her return to work in February 2024 after a period of sick leave she was left to operate in a state of ongoing uncertainty, without guidance, and without access to the supports from the BP3 level. The Complainant further stated that she had been carrying out only a portion of her normal BE responsibilities and took on certain BP3 tasks by necessity, given the absence of the manager whose role was not backfilled. She contrasted this with her white colleague at BE level who, she said, continued to perform the full range of BE duties and continued to receive uninterrupted managerial support from an assigned BP3 manager. The Complainant contended that this disparity in support and oversight was attributable to race, and that the only meaningful distinction between her circumstances and those of the comparator is that she is black and the comparator is white. She argued that the Respondent’s failure to backfill the managerial post, and its failure to put alternative supports in place, resulted in her being placed at a disadvantage not experienced by her colleague. On the evidence before me, I find that the Complainant and the comparator were not in materially similar situations. The comparator continued to carry out the full BE role and was supported by an assigned manager above her. The Complainant, however, was performing a hybrid set of duties during the cognisable period—some at BE level and some at BP3 level—arising from an unaddressed managerial vacancy. Given that by the Complainant’s own account, the roles she and the comparator occupied were substantively different in scope and content, I find that the comparator relied upon is not a valid comparator within the meaning of the Employment Equality Acts. Accordingly, I find that the Complainant has failed to establish a prima facie case of discrimination in respect of this complaint in the cognisable period. CA-00072635-003: The Organisation of Working Time Act states: 19.—(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to— (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment), (b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or (c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks): Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater. The Complainant referred the complaint under the Acts to the WRC on 20 June 2025, and this means that the cognisable period begins on 1 April 2024, the start of the 2024/2025 statutory leave year, and ends on 20 June 2025. The Complainant confirmed in her evidence, that she had taken 8 days of annual leave during the statutory leave year commencing 1 April 2024, and did not dispute that a sum of €6,144, representing 23.5 days of annual leave, was included in her final payslip. I also calculated that her total statutory annual leave entitlement was 24.45 days for the period 1 April 2024 to 20 June 2025, with an additional 1.3 days accruing for the period after the referral of this complaint, the period from namely 21 June 2025 to 14 July 2025, when she left her employment. It is therefore clear that she received payment in respect of her full outstanding annual statutory leave entitlements for the period 1 April 2024 to 20 June 2025 in her final payslip issued following her departure on 14 July 2025. Accordingly, there is no outstanding liability in respect of her statutory annual leave and I find that the complaint is not well founded. CA-00072635-004: Discrimination for the purposes of this Act. 6.—(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 insubsection (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 ofparagraph (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— (h) that they are of different race, colour, nationality or ethnic or national origins (“the ground of race”), Like work. 7.—(1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if— (a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work, (b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or (c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions. (2) In relation to the work which an agency worker is employed to do, no person except another agency worker may be regarded under subsection (1)as employed to do like work (and, accordingly, in relation to the work which a non-agency worker is employed to do, an agency worker may not be regarded as employed to do like work). Entitlement to equal remuneration. 19.—(1) It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer. (2) In this section ‘relevant time’, in relation to a particular time, is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time. (3) For the purposes of this Part, where B’s employer is an associated employer of A’s employer, A and B shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment. (4) (a) Indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of remuneration compared with other employees of their employer. (b) Where paragraph (a)applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1)as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary. (c) In any proceedings statistics are admissible for the purpose of determining whether this subsection applies in relation to A or B. (5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees. Burden of proof. 85A.—(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary. (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 undersection 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, (b) victimisation, (c) harassment or sexual harassment, (d) the inclusion in a collective agreement to which section 9applies of a provision which, by virtue of that section, is null and void. (5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under this Act, are revoked. It has been the well-established practice of the WRC and the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that he or she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated: “The first requirement is that the Complainant 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 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 those 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”. In the case of Arturs Valpeters v Melbury Developments Ltd [2010] 21 E.L.R. 64 the Court stated in respect of the provision in S 85A that; “This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they must be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.” In Margetts v Graham Anthony & Company Limited, EDA038,the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows: “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 adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” So, it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. The Complainant in this case stated that she was discriminated against on the grounds of her race in relation to her pay given that she performed like work or work of equal value with a named comparator who is of a different race to her. She asserted that between January 2024 and October 2024, before going on sick leave, she was performing the samework as a colleague at BP3 level, yet was paid less. The comparator, she said, was of a different race. She identified her alleged duties during the period—including budget preparation, forecasting, year‑end processes, and responding to audit queries—as evidence that she was performing work equivalent to that undertaken at BP3 level. However, when questioned about what she actually did and how it matched the comparator’s duties, the Complainant’s evidence was vague, generalised, and lacking in specificity. She did not set out the precise elements of the budgeting work she performed, the level of responsibility she held, or the complexity of the audit queries she handled. She was unable to say how her participation in the budgeting or forecasting process mirrored that of the alleged comparator; nor did she describe any element of her role that would have been equivalent to BP3‑level operational responsibility. Equally, she did not provide concrete evidence describing the comparator’s work to allow for a clear comparison at the level of skill, responsibility, or decision‑making. The Respondent’s witness gave clear, structured evidence about the functioning of the team. She explained that:
Considering all of the foregoing, I find that the Complainant has failed to establish a prima facie case of discrimination on the race ground in respect of this complaint because she failed to demonstrate that she was doing the work of a BP3 level manager between January 2024 and October 2024. CA-00072635-005: Section 12 of the Organisation of Working Time Act 1997 imposes a statutory obligation on employers to provide appropriate rest breaks to employees. Specifically:
Section 12 of the Organisation of Working Time Act 1997 states as follows in relation to weekly working hours. 15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed— (a) 4 months, or (b) 6 months— (i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or (ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection, or (c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection. (4) A reference period shall not include— (a) any period of annual leave granted to the employee concerned in accordance with this Act As I have found that reasonable cause has not been established, as outlined above, I am confined to examining any breaches of the Act in the six-month period between 21 December 2024 and 20 June 2025. As the Complainant accepted in her evidence that she did not work in excess of 48 hours in this six-month period and received the statutory breaks that she was entitled to under the Act in this period, I find that this complaint is not well founded. CA-00072635-007: This complaint included a complaint of (i) Discrimination on the disability ground and (ii) Victimisation 6.—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 virtueof 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—.. (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”), The Complainant stated that she was discriminated against by the Respondent when they failed to afford her reasonable accommodation in respect of her disability. Before determining whether the Complainant was subjected to discrimination in respect of this aspect of her complaint, I must first consider whether she had a disability within the meaning of section 2 of the Act and whether the Respondent was aware of that disability. The Complainant stated in her evidence that she was suffering from hypertension. When asked to identify the period during which she believed she was discriminated against, she stated that the alleged discrimination occurred following her return to work in February 2025, when the Respondent allegedly failed to provide reasonable accommodation for her. However, there was no evidence presented to indicate that the Respondent had any knowledge of a disability in February 2025. When asked to provide evidence that the Respondent was aware of her condition, the only documentation produced by the Complainant was a medical report generated after an Occupational Health Assessment in May 2025. This assessment had been arranged by the Respondent after the Complainant went on sick leave in April 2025. The Complainant did not return to work between going on sick leave in April 2025 and the referral of the present complaint to the WRC. As the alleged discrimination is said to have occurred in February 2025—at a time when the Respondent was not on notice of any disability—I find that the Complainant cannot establish a prima facie case of discrimination. (ii) Section 74 of the Employment Equality Acts states as follows in relation to victimisation: 2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the Complainant was solely or mainly occasioned by the Complainant having, in good faith— (a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment), (b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment, (c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or (d) given notice of an intention to do anything within paragraphs (a) to (c). The Complainant stated that she was victimised, alleging that she was subjected to an excessive workload following the grievances she submitted in December 2024. However, there was nothing in those grievances that indicated that the Respondent had discriminated against her on either the disability ground or any of the protected grounds under the Employment Equality Acts, nor was there anything that could reasonably be interpreted as alleging a breach of that legislation. In order for a complaint of victimisation to succeed, the employee must demonstrate that they were penalised because they had, in good faith, taken steps connected to enforcing their rights under the Employment Equality Acts, such as alleging discrimination or participating in proceedings under the Act. As the grievances submitted by the Complainant on 9 October 2024 and 29 April 2025 did not contain any allegation of disability discrimination or any allegation of any discrimination or indeed any matter capable of bringing her within the scope of the Employment Equality Acts, I am of the view that a finding of victimisation cannot be established. CA-00072635-008: The Sick Leave Act 2022 states as follows: Protection of employees from penalisation 12. (1) An employer shall not penalise or threaten penalisation of an employee for proposing to exercise or having exercised his or her entitlement to statutory sick leave. (2) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2015, relief may not be granted to the employee in respect of the penalisation both under this Act and under those Acts. (3) In this section, “penalisation” means any act or omission by an employer or a person acting on behalf of an employer that affects an employee to his or her detriment with respect to any term or condition of his or her employment, and, without prejudice to the generality of the foregoing, includes— (a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2015), or the threat of suspension, lay-off or dismissal, (b) demotion or loss of opportunity for promotion, (c) transfer of duties, change of location of place of work, reduction in wages or change in working hours, (d) imposition or the administering of any discipline, reprimand or other penalty (including a financial penalty), and (e) coercion or intimidation. The Complainant accepted in evidence that she did not, at any stage, notify the Respondent that she was invoking her statutory entitlement to sick leave under the 2022 Act. She further accepted that, during the relevant period, she availed of and was paid for 92 days of sick leave in accordance with the Respondent’s own internal sick leave policy, which exceeded the statutory minimum entitlement. The Complainant’s case, as presented, was that she believed she suffered penalisation because she was on sick leave. However, she did not provide any evidence that she had:
Accordingly, I find that the complaint is not well founded. CA-00072635-009: Discrimination for the purposes of this Act. 6.—(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 insubsection (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”), Like work. 7.—(1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if— (a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work, (b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or (c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions. (2) In relation to the work which an agency worker is employed to do, no person except another agency worker may be regarded under subsection (1)as employed to do like work (and, accordingly, in relation to the work which a non-agency worker is employed to do, an agency worker may not be regarded as employed to do like work). Entitlement to equal remuneration. 19.—(1) It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer. (2) In this section ‘relevant time’, in relation to a particular time, is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time. (3) For the purposes of this Part, where B’s employer is an associated employer of A’s employer, A and B shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment. (4) (a) Indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of remuneration compared with other employees of their employer. (b) Where paragraph (a)applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1)as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary. (c) In any proceedings statistics are admissible for the purpose of determining whether this subsection applies in relation to A or B. (5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees. Burden of proof. 85A.—(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary. (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 undersection 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, (b) victimisation, (c) harassment or sexual harassment, (d) the inclusion in a collective agreement to which section 9applies of a provision which, by virtue of that section, is null and void. (5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under this Act, are revoked. Findings: It has been the well-established practice of the WRC and the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that he or she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated: “The first requirement is that the Complainant 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 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 those 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”. In the case of Arturs Valpeters v Melbury Developments Ltd [2010] 21 E.L.R. 64 the Court stated in respect of the provision in S 85A that; “This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they must be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.” In Margetts v Graham Anthony & Company Limited, EDA038,the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows: “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 adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.” So, it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised. The Complainant in this case stated that she was directly discriminated against on the grounds of her gender in relation to her pay given that she performed like work or work of equal value with a named comparator who is of a different gender to her. She asserted that between January and October 2024, before going on sick leave, she was performing the samework as a male colleague at BP3 level, yet was paid less. The comparator, she said, was of a different gender. She identified her alleged duties during the period—including budget preparation, forecasting, year‑end processes, and responding to audit queries—as evidence that she was performing work equivalent to that undertaken at BP3 level. However, when questioned about what she actually did and how it matched the comparator’s duties, the Complainant’s evidence was vague, generalised, and lacking in specificity. She did not set out the precise elements of the budgeting work she performed, the level of responsibility she held, or the complexity of the audit queries she handled. She was unable to say how her participation in the budgeting or forecasting process mirrored that of the comparator; nor did she describe any element of her role that would have been equivalent to BP3‑level operational responsibility. Equally, she did not provide concrete evidence describing the comparator’s work to allow for a clear comparison at the level of skill, responsibility, or decision‑making. The Respondent’s witness gave clear, structured evidence about the functioning of the team. She explained that:
Considering all of the foregoing, I find that the Complainant has failed to establish a prima facie case of discrimination in respect of this complaint because she failed to demonstrate that she was doing the work of a BP3 level manager between January 2024 and October 2024. CA-00074740-001: The Act at Section 1 defines “constructive dismissal” in the following manner “dismissal”, in relation to an employee, means— the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, The Complainant stated that, due to the Respondent’s handling of her grievance and the circumstances of her absence from work after she went off sick in April 2025, she had no option but to resign. In considering the timeline, I note that on 31 March 2025, the Respondent wrote to the Complainant confirming that her grievance had completed Stage 3 of the employer’s internal procedure and that the next step was Stage 4, which required referral of the grievance to the Workplace Relations Commission. Notwithstanding that clear direction, the Complainant proceeded on 21 April 2025 to lodge a fresh internal grievance, which she accepted in evidence was identical to the grievance already dealt with up to Stage 3. The Respondent acknowledged this second grievance and indicated that they would be prepared to deal with it when the Complainant returned from sick leave and/or was deemed medically fit to engage with the process. The Complainant then, on 20 June 2025, referred the grievance to the WRC herself. This was fully consistent with Stage 4 of the Respondent’s procedure and, indeed, with the explicit instruction she had received on 31 March 2025. There was nothing improper in her doing so; it was the correct procedural step. However, rather than await:
the Complainant chose to resign on 14 July 2025. She thereafter commenced employment with a new employer on 15 July 2025, the day immediately following her resignation. Constructive dismissal requires evidence that the employer’s conduct was so unreasonable that it left the employee with no real alternative but to resign, and that the employee exhausted internal procedures, or had strong justification for not doing so. This is a high bar. On the facts, the Complainant had two parallel, active avenues available to her:
There was no evidence that the Respondent obstructed her access to either mechanism. In fact they encouraged it and acted entirely reasonably. The Complainant instead resigned before either process could be followed through and without giving the Respondent a fair opportunity to address the matters raised. In these circumstances, the Complainant has not demonstrated that she was left with no option but to resign, nor that she exhausted the appropriate procedures before doing so. Accordingly, I find that she was not constructively dismissed. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00072635-001: I find that this complaint is not well founded for the reasons set out above. CA-00072635-002: As she failed to establish a prima facie case of discrimination, I find that the Complainant was not discriminated against. CA-00072635-003: I find that this complaint is not well founded for the reasons set out above. CA-00072635-004: As she failed to establish a prima facie case of discrimination, I find that the Complainant was not discriminated against. CA-00072635-005: I find that this complaint is not well founded for the reasons set out above. CA-00072635-007: As she failed to establish a prima facie case of discrimination, I find that the Complainant was not discriminated against. CA-00072635-008: I find that this complaint is not well founded for the reasons set out above. CA-00072635-009: As she failed to establish a prima facie case of discrimination, I find that the Complainant was not discriminated against. CA-00074740-001: I find that the Complainant was not constructively dismissed for the reasons set out above. |
Dated: 29-04-2026
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Key Words:
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