ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00060314

Parties:

	Complainant	Respondent
Anonymised Parties	Former Employee	A State Body

Representatives

Self

Kiwana Ennis, BL, instructed by Byrne Wallace Shields LLP

Complaint:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00072524-001	17/06/2025
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00072524-002	17/06/2025

Date of Adjudication Hearing: 04/03/2026

Workplace Relations Commission Adjudication Officer: John Harraghy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

The parties were advised that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public. That may result in decisions no longer being anonymised.

Both parties were advised that an Adjudication Officer may take evidence on oath or affirmation.

Where submissions were received, they were exchanged and whilst I will not be referring to every correspondence, I have considered all the submissions made to me in the course of my investigation as well as the evidence presented at the hearing. This included a significant volume of material consisting of 9,010 pages relating to a workplace investigation. Submissions and appendices were also submitted by both parties. The Complainant gave evidence under affirmation and Mr A, Chief Executive Officer gave evidence under affirmation. The parties were afforded the opportunity to test the oral evidence presented by way of cross-examination. Where necessary, I made such enquiries as were required to clarify aspects of the evidence in fulfilment of my statutory function.

An application was made by the Complainant, and not opposed by the Respondent, to have the hearing in private and issue an anonymised decision. In accordance with Sections 13 and 14 of the Workplace Relations Act 2015, I have decided to anonymise this decision. The relevant section of the Act is:

“(13) Proceedings under this section shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of a party to the proceedings, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.

(14) (a) Subject to paragraph (b), the Commission shall publish on the internet in such form and in such manner as it considers appropriate every decision of an adjudication officer under this section.

(b) In publishing a decision under paragraph (a), an adjudication officer may determine that, due to the existence of special circumstances, information that would identify the parties in relation to whom the decision was made should not be published by the Commission.”

I have based my decision to anonymise on the special circumstances that certain sensitive details in relation to a disability diagnosis were disclosed in the written submissions and during the hearing.

Background:

The Complainant was employed at Principal Officer grade with the Respondent. She commenced employment in May 2017 and resigned in December 2024. Her salary was €123,481.

She submitted a complaint to the Workplace Relations Commission (“the WRC”) on 17/06/2024. The Complainant alleges discriminatory dismissal under the grounds of gender, age, disability, family status and conditions of employment. She is also alleging that she was discriminated against by a failure to provide reasonable accommodation.

The Complainant is also alleging that she was penalised for complying with or making a complaint under the Safety, Health and Welfare at Work Act, 2005.

The Respondent denies the claims raised, and submits that the Complainant has failed to establish a prima facia case of discriminatory treatment on any of the identified grounds. The Respondent also notes that the cognisable period for this complaint runs from 20/06/2024.

Summary of Complainant’s Case:

Evidence – the Complainant:

The Complainant gave evidence on affirmation. She outlined that she commenced employment in May 2017. She was on maternity leave and returned in June 2020. Her title had changed but her duties did not. She submits that a lot of additional work was generated as a result of COVID-19 and she felt overworked. She brought this to the attention of the CEO. He sought sanction from the relevant Department to recruit an additional support person and this was approved. This took about one year to materialise. Her role was then split. Another employee (Mr B) commenced in October 2020 and reported to her. After this employee passed his probation the Complainant noted that he became difficult to manage and argued about everything she asked him to do. She was on sick leave due to surgery and recovery. She was then on sick leave from 13/09/2021 until 18/10/2021 and she submits that Mr B’s behaviour was a contributory factor to her illness.

When she returned her role was split in two and she had more time to see what was going on. Mr B would not do what she asked him and she raised this informally with him and kept her manager, Mr A informed. She was responsible for the implementation of a major project and she was concerned that it would not be delivered due to the issues associated with Mr B. The Complainant took a period of leave for family related issues and on her return Mr B provided no information and she felt shut out of the project. She discussed this with Mr A and she discovered that Mr B had meetings with Mr A without her knowledge. The Complainant submits that nothing was done by the Respondent to assist her in managing the difficulties with Mr B.

In July she conducted the required mid-year performance with Mr B and she raised her concerns with him. Mr B stated that he would not do what he was asked unless he agreed with the requests. The Complainant advised Mr B that she would have to implement a Performance Improvement Plan (PIP). She was on leave for two weeks and on her return she was advised by Mr A not to proceed with the PIP as Mr B had now made a complaint against her.

The Complainant submits that the Respondent’s employee handbook states that not following reasonable instructions is classified as gross misconduct and an act of insubordination. No action was taken by the Respondent to support her in managing Mr B.

The Respondent offered mediation, but she declined and explained that her reasons for doing so were that she did not see Mr B engaging in this in good faith. The other reason was that Mr B not following instruction was the catalyst but the Respondent not providing any assistance was the real issue. Mr B repeatedly said things that were not true. He told Mr A that he would not sign the PIP and he also told the investigation that he did not say this. The Complainant believes that Mr A and Mr B were connected in some way.

Mr B submitted a formal complaint against the Complainant in September 2022. Another senior manager, Mr C, prepared a note for mediation. Despite this turn of events the Complainant submits that she was still responsible for managing Mr B. She felt stonewalled by her colleagues and her manager. On 06/10/2022 she was moved to a different position. Mr B was also moved to another role and was not reporting to her. The Complainant submitted a formal complaint against Mr B on 14/09/2022.

The investigation into these complaints commenced in January 2023. The Complainant gave extensive evidence in relation to the delays and noted that she received the draft report on May 2024 and given two weeks to review and respond to this. She confirmed that she sought and was granted additional time to do this. The Complainant submits that receiving the draft report 18 months after the investigation commenced and two years after the mid-year review with Mr B was most unreasonable and the Respondent did not do anything to have the investigation completed in a timelier fashion. The Complainant submits that the Respondent commissioned the investigation and they are responsible for the pace of the investigation. She retained a solicitor in July 2023.

The Complainant submits that her dignity was offended during the investigation process. Mr B said that she was lazy and difficult to work with. Her solicitor wrote to the Respondent on 28/06/2023 and advised them of a recent diagnosis which constituted a recognised disability within the meaning of the Employment Equality Acts, 1998 – 2015. About two weeks after this the Mr A sent an email to all staff advising that her duties would be reassigned for a two-year period. The Complainant could not see how she could return to work after that email. She applied for ill health retirement, but this was not sanctioned by the Chief Medical Officer. The Complainant outlined that she made a decision on 19/12/2024 not to return to work and submitted her resignation on 20/12/2024.

The Complainant was asked by the Adjudication Officer to illustrate how she felt that she was discriminated against. She outlined:

a) None of the events she described would have occurred if the Respondent had dealt properly with the issue involving Mr B
b) Mr A made a comment that he had sympathy for Mr B as an older man taking instructions from a younger woman
c) The decisions made by Mr A and Mr C to treat gross misconduct and insubordination as an interpersonal issue
d) The gender and age grounds of discrimination are covered by the above
e) Mr A’s email to all staff stating that someone else was going to do her job for two years was issued just two weeks after her diagnosis was submitted
f) Her leave for family reasons and recovery from surgery all played into the actions that were taken by Mr A
g) Mr B used her absence to develop a close working relationship with Mr A
h) No other employee had their role removed at that time. The two-year period was discriminatory as her certified sick leave was up to the end of July
i) If she returned to work in August there was no role for her and the Respondent did not give her any indication of any plans.

In relation to her complaint, CA-00072524-002, seeking adjudication under Section 28 of the Safety, Health and Welfare at Work Act, 2005 the Complainant submitted that much of the evidence and facts already outlined are also pertinent to this complaint. She summarised her complaint by stating that the Respondent failed to provide her with a safe working environment.

Mr A was made aware of the stress caused to her by the workplace investigation and the long delay in finalising this.

Cross examination – The Complainant:

The Complainant was cross examined by Ms Ennis, BL, on behalf of the Respondent. She confirmed that she had previous public service before joining the Respondent. She agreed that her role with the Respondent was a senior role. Her contract of employment was opened, and she confirmed that Section 5 dealt with her duties which she agreed were not fixed.

The Complainant confirmed that she signed off on Mr B’s probation and she agreed that it was after that the issues with him commenced. She agreed that he also had issues with her. A copy of an email from Mr B to Mr A was opened and she agreed that this was Mr B expressing surprise at the changes. Mr B’s email of 12/07/2022 was also opened and the Complainant agreed that this was a complaint about his mid-year review and subsequent PIP. The Complainant explained that Mr B was not going to do what she asked him to do, and this caused a problem for her in relation to the delivery of the project. The problem was that he was not doing what he was asked. The Complainant accepted that Mr B also had a problem with her.

It was put to the Complainant that as both she and Mr B were key to the delivery of the project it was not to the Respondent’s advantage if they were not getting on. She agreed. The email which was prepared by Mr C as a note for the mediation was opened and she was asked if this was a fair reflection of the issues between her and Mr B. She stated that she was not sure what the meaning of the phrase “… formally raise his concerns through the project management process” means. This was the only reference she has seen to this. The Complainant stated that there was no evidence that Mr B could not raise his concerns through that process.

The Complainant was asked if she was suggesting that the Respondent should disregard Mr B’s concerns. She stated that they should not but the fact was that he was not prepared to follow her instructions.

The Complainant was asked how she formed the view that Mr B would not enter mediation in a bona fide manner. She stated that he had made a complaint of bullying against her and her experience of dealing with him led her to believe that he would enter the mediation process in bad faith. The Complainant agreed that Mr B’s formal complaint against her was made on 5 September 2022, and she also agreed that her complaint was made on 19 September 2022. The Complainant accepted the fact that the Respondent had no option but to have the complaints formally investigated. She agreed that this was done using the services of an independent investigation. She agreed that the company undertaking the investigation was sourced from the public procurement site.

It was put to the Complainant that arising from her evidence the issues she had with the investigation were (i) the delay, (ii) the findings and (iii) the lack of an appeal process. It was put to the Complainant that the investigation report addressed the delay and highlights the volume of documents and the requirement to exchange documents. She stated that she did not see reasons outlined in the report. The Complainant agreed that there were lots of documents and over 4,000 pages. It was put to the Complainant that the investigation involved 12 witnesses and that all takes time. She confirmed that she was unsure how many witnesses were interviewed but noted that it should not take a month to produce notes after a meeting and she also noted that she has looked elsewhere at how long investigations take place.

It was put to the Complainant that it was her view that the Respondent was responsible for the delayed investigation. She stated that the Respondent should have raised a concern with the investigator and sought an increase in resources. She stated that this could have been achieved by not taking a month to provide notes of a meeting. She also stated that it was not clear to her that the investigator was working 100% of the time on this. She confirmed that it was her view that when it was going to take 18 months the Respondent should have intervened, and she saw no evidence of this.

The Complainant agreed that Mr B also suffered the same delay with the investigation, and she agreed that she was not singled out. She also agreed that there was no finding of bullying made against her and there was only a finding of an affront to dignity. It was put to the Complainant that such a finding was at the minor end of the scale. She stated that it is viewed as less serious.

The Complainant agreed that during the investigation process she was on special paid leave. She confirmed that she was on sick leave when the report was issued. The Complainant agreed that she and Mr B were moved off the project they were working on. She confirmed that she was still not back at work when the investigation report was issued in 2024. She confirmed that she was on sick leave at that time and this was on full pay initially and then reduced.

The Complainant agreed that the project was not being progressed while she was out and agreed that this was an important project for the Respondent. It was put to the Complainant that it was on this basis that the CEO sent the email to say that the project was going to be reassigned until its implementation. The Complainant stated that it was not only the project that was reassigned. Her other duties were also reassigned, and the project was not the only work of her unit. She confirmed that she did not seek any clarification at that time.

It was put to the Complainant that she reached the conclusion that the email sent by the CEO was because of her recent diagnosis. She stated that the timing was significant – two weeks after the Respondent was informed of her diagnosis and this was not the first thing that happened after her diagnosis, but she had no evidence in relation to this.

It was put to the Complainant that the first time the Respondent was notified of her diagnosis was when her solicitors sent a letter dated 28/06/2024 and she agreed. She also agreed that there was no disciplinary process commenced but she noted that there was a note in a referral to the CMO about potential disciplinary issues. She confirmed that she was not aware of what this referred to.

It was put to the Complainant that:

a) There was no disciplinary process commenced
b) She was not called to a disciplinary meeting
c) There was no formal process undertaken and
d) There was no disciplinary sanction issued against her.

The Complainant agreed but stated that she had no knowledge of what was to happen. She stated that she believed the email from the CEO on 12/07/2024 was linked to the investigation report. It was put to the Complainant that her earlier evidence was that the email was linked to her diagnosis and she agreed. The Complainant was asked if she was now saying that the investigation report was also a factor in relation to the email from the CEO and she stated that she could see no other reason.

It was put to the Complainant that the Respondent’s solicitors replied to her solicitors on 30/08/2024 and clarified that the email from the CEO was sent as it was important that the project was delivered and the changes were made to ensure that this happened. It was also clarified that her position was there and confirmed that they took their obligation to reasonably accommodate an employee with a disability very seriously. The Complainant stated that while she had a job she had no knowledge of what her duties were. She stated that she believed that she would never have been fit to return to that work environment as she believed it was not a safe environment.

It was put to the Complainant that was her decision and she confirmed that it was her decision made as a result of the actions and lack of actions by the Respondent.

It was put to the Complainant that Mr A will give evidence that the situation was becoming difficult with the project when her unit was reporting to him and as he was CEO he made the change to her role to ensure that her unit and the IT unit worked together on the project. She stated that the timing of the announcement is a key factor and she does not know why it was not made earlier in the year if he had those concerns.

The Complainant confirmed that she submitted her letter of resignation with immediate effect on 20/12/2024. She agreed that she did not invoke the grievance procedure at that time. She outlined that the reason she did not do so was that she made a formal complaint in 2022 about Mr B not taking instructions from her and when that concluded she was not able to raise a grievance.

The Complainant was asked if she gave the Respondent an opportunity to deter her from resigning and she confirmed that she did not as she was very unwell at that time. She agreed that her application for retirement on the grounds of ill health was not supported by the CMO.

The Complainant was asked to clarify when Mr A expressed sympathy for Mr B having to report to a younger woman and she stated that this was in June 2022. It was put to her that this was in fact 1.5 years before the referral of her complaint to the WRC and she agreed as she was following internal procedures at that time. She also agreed that she had no record of this conversation and she did not raise a complaint at that time as Mr A was the CEO and she was reporting to him. It was put to the Complainant that Mr A’s evidence will be that he asked the Complainant if she thought the issue with Mr B was the fact that he was reporting to a younger woman. She stated that was not what occurred, and he what he said was that as a man he had a certain degree of sympathy for Mr B reporting to a younger woman. She stated that this was “a very memorable moment”. She confirmed that she could not recall if she made a handwritten note at that time.

It was put to the Complainant that she said Mr A also made comments about women on leave and she was asked when this happened. She stated that when she started work Mr A came into her office and said that it was always women who were working part-time. She agreed that there was no record of this. It was put to the Complainant that Mr A will deny saying such a comment and she said that she would expect he would.

It was put to the Complainant that she made comments about the number of secondments taking place and that this was an attempt to push her out. She agreed that she had no evidence, and her analysis was done on a year-by-year basis. The Complainant also confirmed that she had no knowledge of why two other Principal Officers left the Respondent. She agreed that she was speculating as to why they left. It was put to the Complainant that Mr A will say that he remains in contact with the two people and that there are a number of female principal officers still in place. The Complainant stated that she had no knowledge of this. It was put to the Complainant that her solicitor’s letter of 13/07/2023 made no reference to the comments she alleges were made by Mr A. She stated that there was none as she was afraid of Mr A. She noted that she did make the Board aware of these allegations. She stated that she did not make any allegations in relation to Mr A as there was a significant power imbalance it would be difficult to make a complaint.

It was put to the Complainant that her case can be summarised as follows: She was not happy with how she was treated by Mr B and she was not happy with the findings of the investigation and she did not want to go back to work for the Respondent. The Complainant stated that she has seen no evidence that it was explained to Mr B that it was incumbent on him to follow her instructions. She stated that she wanted it acknowledged that he was obliged to follow his instructions. It was put to the Complainant that Mr B submitted his case first and the Respondent tried to treat Mr B and the Complainant fairly and equally. The Complainant stated that she had a staff member reporting to her and she had no problems with him other than that he would not follow her instructions and the Respondent done nothing about that.

Closing submission – the Complainant:

In a closing submission the Complainant stated that she had a number of points that she wished to outline:

She put her concerns about Mr B in writing to Mr A on 18/08/2022. This email was not replied to, and she was instructed by Mr A not to proceed with a PIP for Mr B.
The Complainant stated that her case is that she had a member of staff reporting to her who was not doing what she asked and Mr A, as CEO and the person she reported to was aware. She also got no response from HR.
The Complainant submitted that she was given no assistance to manage Mr B and she tried to manage him but was told not to.
The fact is that Mr B did not follow her instructions.
There was a two-year investigation and this was very slow. Mr B’s behaviour was allowed to go unchecked by the Respondent and by instructing her not to proceed with the PIP her position was untenable. This was not a place of work that she could return to.
The email sent to all staff by the CEO, Mr A on 12th July was clearly taking away her duties after her diagnosis was notified to the Respondent.
This was not a workplace she could return to. The entire sequence of events was what compelled her to feel she had no option but to resign in December 2024.

In response to a question from the Adjudication Officer the Complainant confirmed that she was satisfied that she was able to submit all her evidence and information that she considered relevant to her complaints.

Summary of Respondent’s Case:

Evidence – Mr A:

Mr A gave evidence on affirmation on behalf of the Respondent. He confirmed that he is the CEO of the organisation. At the time the Complainant was employed all Principal Officers reported to him. Their role was to run their assigned units and report to him. Mr A confirmed that the Complainant reported directly to him. Mr A gave details of the Complainant’s role and she was head of a unit and the title changed subsequently. Mr A agreed that this was a big role and growing. The Complainant came to him about the volume of work and it was then split into two separate roles.

Mr A confirmed that Mr B was employed as an Assistant Principal Officer (AP) and reported to the Complainant. Mr A outlined details of the major project the Complainant was working on. Their IT system was in place since 2012 and it was at its end of life and this project was to replace the Respondent’s core system. He was the project sponsor and the heads of two units were responsible for progressing it.

Mr A confirmed that Mr B was working on the project and reporting to the Complainant. The Complainant gave him a high-level description of their difficult working relationship. She identified that Mr B was not following instructions and Mr A could not recall if she asked him to intervene. She was keeping him informed but he was not asked to get involved. Mr A was asked about the Complainant’s evidence that he expressed sympathy for Mr B’s position. Mr A said that he has no direct recollection or note of that conversation. Mr A stated that he would have no time for anyone not following instructions because they were an older man reporting to a young woman. The comment attributed to him would not be in line with his views.

Mr A was also asked about the alleged comments he made about women working part-time. He said that he had no recollection of such a conversation. He also said that he has not looked at the statistics but he is aware that its more likely that women work part time due to various leave and family matters. Mr A was asked about the Complainant’s picture of the Respondent as an organisation with a sexist environment. Mr A stated that he believed it is not so.

Mr A was asked about the departure of two other female PO’s from the organisation. He stated that he had no reason to believe that they left because they were unhappy. He had a good relationship with both employees and in fact he met both recently at their suggestion. No complaints were filed by either employee.

Mr A was asked about the Complainant’s resignation letter of December 2024 and if the other two PO’s has submitted a similar letter. He stated that they did not submit any such resignation letters. He stated that there are 8-9 PO’s in the organisation and three are female.

Mr A stated that the Complainant kept him informed about the issues with Mr B. He was not aware of Mr B’s view of things until he got his email in relation to the proposed PIP. Mr A stated that the issues between the Complainant and Mr B was a very significant issue given the importance of the project they were working on. This became an issue that he had to become involved with. Mr A stated that a formal process began when the complaints were submitted. The Respondent engaged the services of an external HR consultant to see if there was a case to answer and they were advised that there was. The Respondent then had to use a formal process to procure an investigator. This was the first time he could recall having to do this. Mr A stated that the formal process would ensure that it was done fairly. The external company was appointed in January 2023. Mr A was asked if he had any oversight of the length of time the process took. He stated that they were surprised how long it took and were unhappy with this. It was also costing a lot of money. Mr C was the person responsible for the oversight of the procurement. Mr A stated that he engaged with Mr C and he had linked with the investigator on two occasions. He was advised that there was a lot of material involved and it would not make sense to try and get another company to take on the investigation at that stage.

Mr A gave evidence that after the investigation process commenced he made a decision to move the two employees, the Complainant and Mr B, to other roles. Mr B is still employed by the Respondent and is now doing a different role. Mr A confirmed that Mr B never returned to his previous role when he was reporting to the Complainant.

Mr A was asked what the Respondent done after the final report was issued in June 2024. He confirmed that the finding in relation to the complaints against Mr B were accepted by Mr C on behalf of the Respondent. In relation to the finding against the Complainant nothing was decided as she was on sick leave. Mr A confirmed that a HR employee completed the referral form for the Complainant to be reviewed by the CMO. Mr A confirmed that there was no disciplinary process initiated against the Complainant as no decision would be made until she returned to work.

Mr A confirmed that he received the letter from the Complainant’s solicitor dated 28/06/2024 which provided details of the Complainant’s diagnosis. Mr A was asked to describe the context of the email he sent to all staff on 12/07/2024. He stated that the context of that email was wholly driven by the fact that the unit the Complainant was working in did not have a PO at that state and they were reporting directly to him. Another PO, Mr D, was having an informal role in the unit and that was not working well. He decided that the unit should report directly to Mr D as he was more familiar with the unit than he, Mr A, was. He clarified that the use of the word “continue” in the email was to ensure that both units worked together as the way things were at that time was becoming less and less satisfactory so hence the decision to send the email.

Mr A stated that this decision had no immediate impact on the project. It was agreed that the manner in which it was set up was not satisfactory so he made the decision. Mr A confirmed that it was totally untrue for the Complainant to state that the email was triggered after the receipt of her diagnosis. The email was driven by the issues that needed to be resolved in relation to the project. Mr A stated that it would be his view that making a decision on the basis of the Complainant’s diagnosis would not be lawful.

Mr A was asked what his thoughts were on receipt of the Complainant’s letter of resignation on 20/12/2024. He confirmed that he was not expecting it. The Complainant was on sick leave and she would be returning as a PO. He stated that he was “unhappy that she was unhappy”. Mr A stated that he would disagree with the Complainant that the Respondent caused her health issues.

Mr A was asked if he could clarify what role the Complainant could have returned to if she was deemed fit to return. He said that there was no definite plan at that stage. They would need guidance from the CMO in relation to what accommodations might be needed. The objective was to find a role commensurate with her skills, experience, and seniority as a PO. He had some thought about a strategic role but no details were worked out. He stated that the email of 12/07/2024 had Mr D responsible up to July 2026 for the project and as he was conscious that her role was previously split there might be opportunities arising. Mr A confirmed that there were no issues with the Complainant in relation to her work performance.

Mr A was asked about the Complainant’s assertion that she was discriminated against on the grounds of gender, age, disability and family status. He stated that the Respondent does not discriminate against people. The Complainant held a senior role with the Respondent and she brought a lot to that role. Mr A stated that discrimination in any form is wrong and that is not a place where the Respondent wants to be.

Mr A was asked by the Adjudication Officer to quantify the number of employees and he stated that it was in the region of 114. He was asked if he told Mr B not to sign the PIP and the confirmed that he could not recall doing so. He was then asked if he told the Complainant not to progress the PIP with Mr B and he stated that he told her that it needed to be done in a different way.

Cross examination – Mr A:

Mr A was cross examined by the Complainant. He was asked why Mr B was not returned to his previous role given that he was cleared in the in the investigation report. Mr A stated that he wanted to ensure stability in the team which was responsible for the project. Mr A was asked if there were other factors at play and he stated that there were none. He discussed the decision which was taken with the head of the two units. Mr A confirmed that Mr D did not say that he did not want to manage Mr B.

It was put to Mr A that he said in his evidence that the Complainant was updating him, but she did not ask for assistance. It was also put to Mr A that when she initially told him about the difficulties with Mr B he asked her if she wanted to get rid of him. Mr A said that he needed to clarify where the Complainant was coming from. Mr A was asked if by asking that question, he understood what the Complainant was experiencing. He stated that he knew how serious she felt about the issue.

Mr A was asked if he was aware if any member of the Respondent advised Mr B that he was obliged to carry out a reasonable instruction. He confirmed that he was not aware of any. He clarified that his management practice is that the unit heads have autonomy in the way that they carry out their roles.

It was put to Mr A that he denied that he instructed the Complainant not to put Mr B on a PIP. He stated that was not correct. He clarified that she was instructed not to proceed with the PIP in the manner in which she had proposed to do so. He was asked if the Complainant was provided with any information in relation to what other way it could be done and he could not recall doing so.

Mr A was asked why the email he sent on 12/07/2024 was sent at that time. He clarified that it was sent because the Respondent had identified a problem and had made a decision and decided to implement it. There were no ulterior motives. Mr A was asked what the difference was between January 2024 and July 2024 given that the Complainant was on leave during that time and his email was sent two weeks after he was informed of her diagnosis. Mr A said that while there was no specific reason the difference was that things were not working and something had to be done.

Mr A was asked about his evidence that Mr D had followed up with the investigator on two occasions in relation to the delays with the investigation and if he considered that this indicated a sense of urgency. He stated that it was the Respondent’s wish to have the investigation proceed more quickly.

Mr A was asked about the role he envisaged for the Complainant when she returned from sick leave and why it was not in either of the two areas she previously worked in. Mr A stated that he wanted stability and the requirement for the unit to deliver the project. There would be a disruptive effect if he had to reallocate people again.

Closing submission – the Respondent:

Ms Ennis, BL, made a closing submission on behalf of the Respondent. She outlined that the Complainant has brought a complaint of discrimination on the gender, age, disability and family grounds. The Complainant has to establish a prima facia case on one or more of the grounds cited. This has to be based on significant facts and not on opinions, beliefs or speculation in relation to why certain things were done. It is submitted that the Complainant has not made that onus of proof.

This complaint is not about the performance improvement plan, whether the investigation took longer than expected or whether the Complainant had interpersonal issues with Mr B. This claim is about whether the Complainant was discriminated against by the Respondent.

The evidence proffered by the Complainant is:

1. In June 2022 Mr A expressed sympathy for Mr B having to report to a younger woman. This was 1.5 years before her complaint was submitted to the WRC. This was not relied on by the Complainant as a reason for Mr A sending the email on 12/07/2024.

2. The Respondent was informed about the Complainant’s diagnosis on 28/06/2024. This was after the investigation was completed. In that context anything before that date had nothing to do with the Complainant’s recent diagnosis.

3. The evidence does not support the conclusion reached by the Complainant and is not sufficient to ground a complaint of discrimination.

In September 2022 there were two complaints received by the Respondent. This does happen in organisations and because it happens it does not mean that the Respondent discriminated against her.

Mr B was in the same position as the Complainant. The Respondent had two complaints and organised an independent investigation. Some of the complaints were upheld and there was no finding of bullying against the Complainant. There was a finding of an affront to dignity.

The Complainant is not able to undermine the findings of the investigation on any discriminatory grounds. The Respondent accepts the findings of the independent investigation.

The Complainant has submitted four grounds of discrimination - age, gender, disability and family status. In relation to age she is attributing this to the alleged comment made by Mr A. In relation to disability she is relying on the email from Mr A on 12/07/2024 which was sent two weeks after he was informed of her diagnosis. There was no evidence adduced on anything prior to her diagnosis and there was no basis to say that the email was linked to her diagnosis. The evidence was that a critical project needed to be progressed and these were decisions made for that reason.

In relation to discriminatory dismissal the Complainant needs to be able to say that she had no option but to resign her position. She confirmed in evidence that she did not utilise the Respondent’s grievance procedure and this is a requirement. This is not a constructive dismissal case as she cannot establish that she had to or had no other option but to resign. It was confirmed to the Complainant’s solicitors that her job was there. She failed to seek any clarity on the issues or what role she was going back to. It was also confirmed that she would be returning to the PO role.

The Complainant also submitted a complaint under the Health, Safety and Welfare at Work Act. Her evidence was that she did not feel that it was a safe place to work. That is not a matter for the WRC and it is a civil case. A Complainant can only take a penalisation claim to the WRC and as she had produced no evidence this complaint cannot be upheld.

The Complainant has provided no actual evidence or actual issues to link her issues to any of the discriminatory grounds. The claims are purely speculative and as there is no objective evidence there can be no discrimination.

Findings and Conclusions:

CA-00072524-001: This is a complaint seeking adjudication by the WRC under Section 77 of the Employment Equality Act, 1998.

The Complainant alleges discriminatory dismissal under the grounds of gender, age, disability and family status. Section 85 A of the Employment Equality Act 1998 states;

“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”.

It is for the Complainant in the first instance, as set out in Mitchell v Southern Health Board [2001] ELR 201, to raise an inference of discrimination before the burden shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. In order to raise an ‘inference’ the Complainant must prove the primary facts upon which she relies.

In Melbury Developments v Arturs Valpeters EDA0917 the Court stated “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.”

In relation to dismissal, Section 2 of the Acts defines dismissal as:-

“dismissal” includes the termination of a contract of employment by the employee (whether prior notice of 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 to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly”.

Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 note at para. 7-86, “this requires there to be a connection between the disability and the alleged discriminatory acts. This connection is not established by way of motive or intention to discriminate, but rather from the facts before the Tribunal from which it may infer discrimination.”

The Labour Court determination in A Technology Company v A Worker EDA0714 provided a helpful analysis:

“a person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable than a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.”

In the case of Margetts v Graham Anthony & Company Limited, EDA038 the Labour Court stated:

“The law requires the Complainant to establish facts from which it may be inferred that discrimination has taken place. The appellant must, on the balance of probabilities, prove those facts from which such an inference may be drawn. When these facts are established to the satisfaction of the Court, the onus shifts to the Respondent to show on the balance of probabilities that it did not discriminate against the appellant. 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”.

The Complainant, in her evidence at the hearing and submissions, submits that three factors give rise to an inference of discrimination on the grounds of age, gender and disability.

The alleged comment by Mr A that he had expressed sympathy for Mr B as an older man who was reporting to a younger woman. The Complainant submits that this remark constituted discrimination on the grounds of age and gender.

The email sent by Mr A, in his capacity as CEO, to the organisation which reassigned the Complainant’s role for a period of two years. The Complainant submits that the proximity between the sending of such an email and the Respondent being informed of her diagnosis approximately two weeks earlier gives rise to an inference of discrimination on the grounds of age, gender and disability.

The alleged negative attitude of Mr A, as CEO, towards women working part-time when taking time off work for family reasons, together with the allegation that the CEO or the Respondent did not adequately support her in managing the challenges posed by Mr B.

In considering these submissions, I have had regard to the burden of proof provisions. The Complainant must first establish facts from which discrimination may be inferred. It is only where such facts are established does the burden of proof shift to the Respondent to demonstrate that the principle of equal treatment has not been infringed.

In relation to the first allegation, the Complainant confirmed in cross-examination that she made no contemporaneous note of the alleged comment. Mr A stated in his evidence that he has no recollection of the conversation and submits that the allegation seems to represent a mischaracterisation of a question he posed to the Complainant. In circumstances where the alleged comment is disputed and unsupported by any contemporaneous record or corroborating evidence, I am not satisfied that the Complainant has established this as a fact from which discrimination on the grounds of age or gender may reasonably be inferred.

The Complainant further relies on the email issued by the CEO on 12/07/2024, which communicated the reassignment of her role for a period of two years. While the Complainant points to the temporal proximity between this email and the Respondent being informed of her diagnosis, temporal proximity alone is not sufficient to establish a prima facie case of discrimination. The evidence provided by Mr A clearly set out the organisational context and rationale for the decision which he communicated in that email. Having considered that evidence, I am not satisfied that the Complainant has established facts from which it could reasonably be inferred that the decision was influenced by her age, gender or disability.

Finally, the Complainant submits that the CEO held a negative attitude towards women who worked part-time when taking time off work for family reasons, and that this forms part of the context for the treatment she experienced. However, the Complainant did not provide specific examples or evidence demonstrating that such an attitude manifested itself in decisions affecting her employment. Her evidence was that this alleged comment was made when she commenced working for the Respondent in May 2017. In the absence of evidence connecting this alleged attitude to the treatment complained of, I am not satisfied that the Complainant has established facts from which discrimination may be inferred.

Accordingly, I find that the Complainant has not established a prima facie case of discrimination on the grounds of age, gender or disability. As the initial burden of proof has not been discharged, the burden does not shift to the Respondent.

CA-00072524-002: This complaint is seeking adjudication by the WRC under Section 27 of the Safety, Health and Welfare at Work Act, 2005.

Section 27 of the Safety, Health and Welfare at Work Act 2005 (“2005 Act”) provides:

“27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), 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 of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.”

Having carefully considered all of the evidence adduced at the hearing, I find that the Complainant has not established that she suffered a detriment within the meaning of Section 27 of the 2005 Act. In order for a claim of penalisation to succeed under the Act, a Complainant must demonstrate that: (i) a protected act occurred, and (ii) the Respondent subjected the Complainant to a detriment or adverse treatment as a consequence of that act.

In the present case, the Complainant has not provided evidence demonstrating that she experienced any form of detriment arising from an alleged protected act. Furthermore, the complaint does not identify any specific conduct on the part of the Respondent that would fall within the forms of penalisation contemplated by Section 27 of the Act, such as dismissal, demotion, transfer of duties, imposition of disciplinary measures, or other adverse treatment.

In the absence of evidence establishing that any such act of penalisation occurred, the statutory threshold required to sustain a claim under Section 27 cannot be satisfied. Accordingly, I find that the Complainant has failed to establish that she was subjected to penalisation within the meaning of the 2005 Act.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that 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-00072524-001: For the reasons outlined above, I find that the Complainant has not established a prima facie case that she was discriminatorily dismissed on gender, age, disability and family status grounds contrary to Section 8(6) of the Acts.

CA-00072524-002: For the reasons outlined above, I have decided that this complaint is not well-founded.

Dated: 1st of April 2026

Workplace Relations Commission Adjudication Officer: John Harraghy

Key Words:

Discrimination gender age disability family status.