Complainant

Respondent

Parties

Parnia  Forouzandeh

Atlantic Technological University

Representatives

Michael Monahan Michael Monahan Solicitor

 Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00074053-001

04/08/2025

The complainant submits that she was discriminated against and victimized on the grounds of disability.

 The complainant submits that she was discriminated against on the grounds of disability ‘X’; in getting a job as well as victimisation and the complaint was received by the WRC on 08/08/2025.  It was submitted that these actions culminated in the wrongful withdrawal of a confirmed job offer for the role of Technician (Biological Sciences), and the complainant submit the Respondent acted in a manner that lacked transparency, consistency, and fairness, and breached obligations under both equality legislation and data protection law. She applied for a position of Technician (Biological Sciences), at Atlantic Technological University (ATU) Sligo in 2024 and completed all recruitment stages successfully and was placed on an approved recruitment panel, meaning ATU had already assessed her suitability and confirmed that she met all essential criteria for appointment.   On 22/01/2025 ATU issued a formal written job offer for a Specific Purpose (0.4 FTE) Technician contract which she accepted on 26/01/2025 and confirmed agreement to reference checks and provided the required documentation. The complainant completed the Working Time Questionnaire on 27/01/2025 and registered for the required occupational health assessment.  The complainant confirmed that she was withdrawing her claim of discrimination on the grounds of race.

During the respondent’s clearance process, the university introduced a new requirement that she needed to provide an internal reference from a staff member at a specific grade (CSM/SLII) which had never been disclosed in the job description or in earlier stages of the process. The complainant offered to provide a suitable internal referee once this requirement was made known but was not allowed to do so. Instead, the offer was withdrawn without a full explanation, even though she had fulfilled every documented condition. It was submitted that she was treated unfairly and differently than other candidates due to disability and the reference requirement appeared to be selectively applied, and the process lacked transparency and fairness. This treatment resulted in the sudden loss of a publicly advertised and formally offered post without just cause or opportunity for remedy.

At the time she was responding to the offer, she was undergoing medical evaluation and was briefly hospitalised. Although she did not disclose her diagnosis, she was unwell, and it was possible that the employer became aware of this. If the withdrawal of the offer was influenced by assumptions about her health, she believed this also constitutes discrimination based on perceived disability. She submitted a review under Section 7 of the Code of Practice on 19/06/2025 and it was acknowledged but never processed, and she subsequently brought the matter to the Commission for Public Service Appointments (CPSA). On 21 July 2025, CPSA confirmed the case was outside their jurisdiction.

It was submitted that ATU introduced a requirement for a manager-grade internal reference only after issuing the job offer. This requirement was not mentioned in the job advertisement, panel process, interview, offer letter, or any communication until late February and early March. ATU conducted internal reference checks without her knowledge, consent, or opportunity to clarify any concerns. She provided multiple external references when requested, yet ATU continued to rely on internal processes over which the complainant had no control. ATU’s inability to obtain a reference from its own staff should not have been used against her.

The process lacked transparency and deviated from fair recruitment practice.  On 10/03/2025 HR Operations Officer Stephen Aitken wrote that ATU was withdrawing the offer because they were “unable to obtain a valid internal manager grade reference.” This justification was inconsistent, unsupported by any formal rule, and communicated only at the final stage. ATU had numerous opportunities to raise any concerns earlier but did not do so. The withdrawal was abrupt, poorly explained, and procedurally unfair. The delays, inconsistencies, and introduction of new requirements created barriers that disproportionately affected her as a disabled person.  Prolonged uncertainty and stress significantly worsened her disability ‘X’ symptoms, including fatigue and neurological stress responses. The Respondent’s actions caused substantial emotional, professional, and medical harm. She relied on the confirmed job and did not apply for alternative roles, resulting in financial and career loss. The experience significantly impacted her wellbeing, stability, and confidence.  The complainant believes this process constitutes discrimination in access to employment under the Employment Equality Acts, based on disability (perceived or otherwise).

Case law cited included Noel O’Connell v National Council for Special Education Adj-00042837,

Evidence of the Complainant:

The evidence of the complainant was that at the time she first applied she was still completing her PhD and since then has graduated with a PhD in Nano Engineering and Bio Technology and was planning on lecturing and they did not give her a chance to provide references.  She had been lecturing for the respondent and they could have got her references from that.  While in hospital she was seen by many people from ATU.  She had never heard the expression Client Services Manager/Head of Department (CSO/HOD) that is mentioned in the emails.  The complainant has been living in Ireland 7 years having worked abroad and never heard reference to the additional information that was sought as being the standard industry’.  After her medical she was told that the respondent would be emailed that she was fit to work and had her appointment on 04/03/2025 and it was uploaded onto ATU system around 08/03/2025 and on 10/03/205 she was advised they were not in a position to proceed and there had been no previous communication.  If she had been asked for this other information she would have given it but she was not.  The complainant asked for a review on 19/06/2025 and she had been there before working so they knew her and she had worked in the lab and had taught different subject.  She believed she did not get the job because of her MS.

Under cross examination the complainant said she finished her PhD in November 2024 and had been paid by ATU as she was teaching and doing labs.  She had communicated with their external Occupational Health organisation on 04/03/2025 and did not know the meaning of HOD and she still does not know what HOD means that was referred to by the respondent. She was diagnosed with disability ‘X’ in January 2025 and this was 2 days before she received an offer of the job.   She had been in hospital and was discharged on 10/02/2025 having got a diagnosis on 20/1/2025 and an offer on 22/01/2025.  She believed the email from occupational health said she was fit to work and she did not know if the respondent received anything else from the external Occupational Health organisation.

The respondent submitted that in 2024 a position was advertised for Technician (Biological Sciences) on a permanent full time basis which included the creation of a panel from which future vacancies would be filled.  The complainant applied and interviews were held and she was placed number 4 on the panel.  On 22/01/2025 the complainant was successfully issued a conditional offer for a parttime fixed term role up to 26/08/2025 for 2 days per week as a specific purpose parttime contract.  The email outlined the process for pre-employment verification check and documentation screening including evidence of qualifications, id, two satisfactory references one of which must be from current or recent employer, evidence of ability to work in Ireland, health screening to be carried out.  It also set out that “The appointment was subject to ratification by the University Approving Body” and that “formal offers issue only when the post has been ratified and all above matters completed and verified”.  The complainant responded by email 26/01/2025 confirming she was in the process of gathering required information.  By email of 13/02/225 the complainant was contacted and advised that the respondent was still awaiting outstanding external references and medical.

On 24/02/2025 the complainant was again contacted and informed that there were required checks needed to be completed before the respondent could proceed with the next steps in the offer.  She was further advised that they currently had not received two satisfactory references, one from a current and most recent employer and an external one as well as a health screen carried out by the University’s Occupational Health providers. Unfortunately, they were therefore not in a position to proceed with the offer.  On the same day 24/02/2025 the complainant replied that she had completed the medical screening and sent information regarding an external reference previously and that she had previously included details of her previous employer who was her PhD supervisor.  The complainant was advised that the external reference needed to be a previous employer and she had until Friday and that the external reference was the remaining outstanding matter and to provide an external reference who had been a previous manager and she had until Friday to provide this.

By 10/03/2025 the complainant was advised that they still had not received an internal reference from someone at CSM/HOD level or above and had to withdraw the offer and the complainant replied that she had not been advised the need for a CSM/HOD level.  The complainant was advised that they would not be proceeding.  On 24/03/2025 the complainant sought further clarification and was advised that it was industry practice to look for a reference from a manager and on 19/06/2025 the complainant requested a review of the matter.

The respondent submitted that the complainant had received a conditional offer which was subject to ratification.  By 24/02/2025

 the complainant had failed to meet the requirements with regards medical screening and reference.  She completed the medical screening but did not comply with the required reference. The burden of proof rests with the complainant to establish a prima facie case of discrimination.  The decision to withdraw was based on her failure to complete the pre-employment conditions and any medical condition did not influence their decision.  The complainant failed to present a comparator.  The requirement to provide manager grade employee reference is industry standard and not a discretionary practice.  The complainant was subject to the same verification practice as other candidates.  The offer was withdrawn because the complainant failed to provide a reference at a level of CSM/HOD.  Even if the complainant establishes a prima facie case there are clear objective non-discriminatory reasons for the withdrawal as the complainant failed to complete pre employment checks.

Case law cited included Mitchell v Southern Health Board

Evidence of Mr Stephen Aitken

His role was Recruitment Lead for the respondent and the position the complainant applied for had been advertised, a short list arose and then there were interviews and then a panel was formed and that panel was live.  When the temporary role came up, others did not find the role attractive enough to take it and it was offered to the complainant who was next on the panel on 22/01/2025 and the contract was to be until 26/08/2025.  The email that was issued to the complainant was a standard template.  The complainant had not completed all parts required by her and Mr Aitken communicated this to Rod Toner.  They do not have any connection with the occupational health reviewer.  The complainant had not provided all the necessary information including Client Services Manager/Head of Department (CSM/HOD) and for a while the medical remained outstanding.  There is no written policy that references CSM/HOD and it was the practice in place at the time.  The fitness cert from The Occupational Health organisation was eventually received on 08/03/2025.  Normally such documents might say “fit to work” or “fit to work with accommodation” and the complainant’s just said “fit to work” and the respondent would not have got details of the medical.  The position the complainant had been offered had arisen because someone was on leave and the complainant remains on the panel.

Under cross examination Mr Aitken confirmed he is not involved in day-today HR and that no references came back for the complainant and that he had told her he would check out the internal references.  He said it was bad practice not to reply to her email when she asked for an explanation as to why she did not get the role.  They were unable to complete the checks and told her they could not proceed.  This was their process and it could have been done better and could have been fairer and the procedure was not explained to the complainant.  Mr Toner who is his manager, made the decision on 10/03/2025 to withdraw the offer following their face-to-face meeting and after Mr Aitken described the situation.  Mr Toner is his manager and Mr Aitken was not happy the process was so slow and they did not advocate for the complainant.

Evidence of Mr Toner HR Manager

Mr Toner said he had the final say in recruitment and when Mr Aitken came to him for advice, he was told the complainant had not completed all the pre-employment requirements.  When the complainant had interviewed in May 2024 there had been 9 invited for interview.  The department had been very busy and there was a back log of recruitment with approximately 200 posts remaining to be filled.  It was unusual there was such a delay from a candidate.  The complainant had done casual work and was not an internal staff member and there were never any suggestions about her medical.  The medical came back and it was Mr Toner’s decision to not proceed any further with her as it is highly unusual to have this level of delay and he had found out the work was already completed and therefore it was no longer necessary to hire someone  The respondent was not aware of any medical issues, and she had only being diagnosed in January 2025.

Under cross examination he said it was a short term contract from January till August and the complainant was deemed appointable and when people complete the pre employment medicals if something of note is captured on the questionnaire then the Occupational Health organisation might call them in for a face to face medical and it was Mr Toner who made the decision that the application would not be proceed.  He could not recall if Mr Aitken had said that it was Mr Aitken who was supposed to be getting the references on behalf of the complainant and Mr Aitken had told him there were delays with the references.  He did not know she had a medical condition.  Mr Toner had been in touch with the hiring manager, and as the role was already covered it was a factor in his decision not to proceed with the complainant.

The complainant submits that a job offer was withdrawn when the respondent became aware that she had disability ‘X’.  The respondent submits that the job offer was withdrawn but they were not aware of the complainant’s disability and that the complainant was not discriminated against or victimised.

Section 6 provides that:

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,

(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”),

Further it is set out that:

Discrimination by employers etc.

8.—(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

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

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

(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or

(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.]

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

It is also provided under Section 16:

16 (3) (a) For the purposes of this Act a person who has a disability is fully competent to undertake, and fully capable of undertaking, any duties if the person would be so fully competent and capable on reasonable accommodation (in this subsection referred to as "appropriate measures") being provided by the person’s employer.

(b) The employer shall take appropriate measures, where needed in a particular case, to enable a person who has a disability—

(i) to have access to employment,

(ii) to participate or advance in employment, or

(iii) to undergo training,

unless the measures would impose a disproportionate burden on the employer.

(c) In determining whether the measures would impose such a burden account shall be taken, in particular, of—

(i) the financial and other costs entailed,

(ii) the scale and financial resources of the employer’s business, and

(iii) the possibility of obtaining public funding or other assistance.]

(4) In subsection (3)—

"appropriate measures", in relation to a person with a disability—

(a) means effective and practical measures, where needed in a particular case, to adapt the employer’s place of business to the disability concerned,

(b) without prejudice to the generality of paragraph (a), includes the adaptation of premises and equipment, patterns of working time, distribution of tasks or the provision of training or integration resources, but

(c) does not include any treatment, facility or thing that the person might ordinarily or reasonably provide for himself or herself

The respondent did not dispute that the complainant had a disability as defined under the Act.  The respondent did dispute that they were aware of this disability in advance of their decision not to proceed with the complainant’s appointment to a position.  The complainant’s’ evidence was that she was diagnosed on 20/01/2025, offered the position on 22/01/2025 and the contract was due to expire on 28/08/2025 and that the job offer was withdrawn on 10/03/2025. Her evidence was that the respondent must have become aware of the disability and that they could have become aware of this either by the external medical assessor informing the respondent orthat they may have become aware of it as she was hospitalised, and/or former colleagues would have seen her and/or  Sligo is a small town and it was not unreasonable that people would have known and/or that the respondent therefore became aware of it.

The Labour Court in the case of The Southern Health Board v. Dr. Teresa Mitchell considered the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination can be made out. It stated 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 was no infringement of the principle of equal treatment."

The Labour Court went on to hold that a prima facie case of discrimination is established if the complainant succeeds in discharging that evidential burden. If the complainant succeeds, the respondent must prove that she was not discriminated against on grounds of their disability. If the complainant does not discharge the evidential burden, the claim cannot succeed.

Section 85A. of the Employment Equality Acts 1998-2008 sets out the burden of proof as follows:

(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 her or her, it is for the respondent to prove the contrary.

In considering Section 85A, as amended, the Labour Court sets out in the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, that:

"Section 85A of the Act, as amended now provides for the allocation of the probative burden as between the parties. It provides, in effect, that where facts are established by or on behalf of a Complainant from which discrimination can be inferred it shall be for the Respondent to prove the absence of discrimination.

The Labour Court went on to say:

"The type and range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may be appropriately drawn to explain a particular set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can be drawn from those facts."

The evidence of the complainant was that the complainant completed a pre-employment medical questionnaire and that following her disclosure of a disability on that questionnaire that she had disability ‘X’, she was called for a pre-employment medical appointment.  It would appear that following that assessment, notification was sent to the respondent deeming her suitable for employment and this notification made no mention of her disability or any accommodations needed.  A copy of the invoice provided by the medical assessment was submitted and does not suggest that the medical assessment disclosed in any capacity that the complainant had a disability.  The complainant’s submission is that if it was not the medical assessor who disclosed it then someone else who had seen her in the hospital may have disclosed the disability and that the town of Sligo is small.

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

Informing the respondent of a disability was addressed in A Complainant-v-A Supermarket DEC-S2010-013 wherein the Equality Officer stated

“The onus is on the complainant to prove his prima facie case and I am not satisfied that any of the respondent's staff would have known him frequently enough and/or well enough to have become aware of his disability in the context outlined in the previous paragraph. In such circumstances, then, the onus is on the complainant to prove that he explicitly made the respondent aware that he had a disability”.

I find that the complainant’s suggestion would appear to be mere speculation and while I would not disagree with her that the “the withdrawal was abrupt, poorly explained, and procedurally unfair” which Mr Aitken a witness for the respondent did not dispute; there is nothing that would support an elevation to a factual basis that the respondent knew about her disability and that what resulted was discrimination.  For completeness I further note that the complainant has not advanced the claim of victimisation which is set out under s74(2)

“victimisation” shall be construed in accordance with subsection (2).

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

and find that the complainant was not victimised.

Having heard all the submission and evidence I would recommend that the respondent should review their recruitment process to ensure that such unfair experiences which the complainant experienced are not repeated, however taking into consideration all the facts, I do not find that the complainant has established a prima facie case of discrimination with regards to disability and I do not find she was discriminated against on the grounds of disability or victimised and I find the complaints are not well founded.

Having heard all the submissions and evidence I do not find that the complainant has established a prima facie case of discrimination with regards to disability and I do not find she was discriminated against on the grounds of disability or victimised and I find the complaints are not well founded.

Recruitment, disability, discrimination.