Complainant

Respondent

Parties

Dalia  Hussey

Comfort Keepers Home Care Ireland

Representatives

Self-represented

Fionnuala Kilcoyne, HR Business Partner and Ms Dimitra Darra, Head of HR

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-00068614-001

14/01/2025

The Complainant applied for a position of a Home Support Worker (HSW) with the Respondent on 11 October 2024.

On 14 January 2025, the Complainant referred her claim to the Director General of the WRC alleging that she was discriminated against by the Respondent by reason of her race. The most recent date of discrimination was stated as 24 October 2024.

The Respondent rejects the claim.

The Complainant submits as follows.

The Complainant applied for a position with the Respondent in the middle of October 2024. On 17 October 2024, she received a telephone call from one of the team members of the Respondent. The telephone interview went very well. During the call, the Complainant had to answer a couple of questions about her availability to work. She was asked to furnish a copy of her ID, proof of address and CV to arrange an interview.

The Complainant received an email stating she was successful and requesting her to forward her credentials.  She sent the documents on 20 October 2024 even though she was not sure if it was legal to send all her personal details, especially an ID before an interview.

After she had forwarded these, she did not hear back from the Respondent regarding the next step, so on 24 October 2024, the Complainant sent an email to Ms Redmond inquiring if her documents were received. On the same day, some 20 minutes later, the Complainant received an email from the Recruitment Administrator stating that she was not suitable for this job due to her lack of English. Due to the contents of this email, the Complainant believes that she was discriminated against on the grounds of her race and nationality.

The Complainant submits that she has never spoken with Ms Redmond or the Recruitment Administrator, and she could not understand how she could comment on the Complainant’s English. The Complainant submits that she had lived in Ireland for 20 years, she is married to an Irish person for years. She does not have difficulties communicating with her husband or his family. She has been working in a business that requires a high level of communication, and she has never had any difficulties communicating with her clients.

The Complainant submits that her confidence has been knocked. She tends to question herself now when she speaks to people in case they do not understand her. This has brought a lot of stress and anxiety and the Complainant has become withdrawn.

The Complainant submits that she has provided care for the last 20 years and was now told that she was not good enough. She felt that that she was not given a resolution by the Respondent and no one should have to go through what she went through. Her mental health has suffered really badly also.

The Complainant submits that the email was copied to four people but yet on the reply, the Recruitment Administrator was the only one who replied and discriminated against her. There is no excuse for that. The Complainant felt that the proper training was not provided and it was very unprofessional of the Respondent. The Complainant felt that the Respondent missed out on a very competent worker who would have given her all.

Summary of direct evidence and cross-examination of the Complainant

In her evidence, the Complainant outlined the sequence of events, as summarised above.

The Complainant said that 95% of her clients are Irish. She believed that the Recruitment Administrator who never spoke with her could not judge her English. The Complainant believed that she was judged by her nationality because she sent a copy of her Lithuanian passport to the Respondent.

The Complainant said that when she received an email from Ms Redmond, she did not want to call her. She thought the Respondent wanted to judge her English on the phone. She then sent an email to the Respondent saying how she felt. She said that when she said that she was going to complain to the WRC, she immediately got a call apologising and explaining the mistake.

The Complainant said that, after she referred her complaint, she got a telephone call from an UK phone number. The Complainant told the female on the call that she would not speak with her as she did not know who the person was, and she would deal with her through the WRC.

The Complainant said that she understood that a mistake could have been made but nobody apologised for it.

In cross-examination the Complainant confirmed that the female on the phone introduced herself, albeit she could not recall her name.

The Complainant confirmed that initially she was contacted by the Respondent on the phone to discuss her application, hours of work, etc. The next step was to send requested documentation.

The Complainant could not remember if she was asked whether she ever lived outside of Ireland. She though she told the person on the phone that she had worked in the USA. She though that she was asked if she needed a visa.

The Respondent submits as follows.

The Respondent is a regulated home‑care provider. The Respondent’s mission is to support its service users to live safely and well at home. The Respondent prioritises quality and safety for service users and compliance with HSE standards. The Respondent recruits and trains Home Support Workers (‘HSWs’) to HSE‑aligned standards through a structured, consistent, and non‑discriminatory recruitment process. To maintain service levels, the Respondent recruits at scale while applying a multi‑stage, fair, and consistent selection process: pre‑screening, interview, pre‑employment online and practical training, and supervised shadow shifts. The recruitment team is responsible for the selection of candidates that closely align with the requirements of the role, the job itself and the potential to fulfil the requirements to the standard of the HSE.

Issues raised

The Respondent received correspondence from the WRC on 5 March 2025 in relation to a complaint of discrimination during the recruitment process which was raised by the Complainant on 16 January 2025.

The Complainant applied for a role as a Home Support Worker (HSW) with the Respondent on 11 October 2024.

On 17 October 2024, she was contacted by a Recruitment Administrator who was a member of the Recruitment Team for an initial screening interview. She was asked to confirm her availability and to submit a copy of her ID, proof of address and CV for review. She was successful in this pre-screening, and documents were requested as per policy.

After this screening interview – which is the first stage of the recruitment process – the Complainant’s application status was updated on the applicant tracking system (ATS) as “successful”.

Following this correspondence, the Recruitment Administrator working within the ATS selected the wrong recipient when sending a standard template email used for candidates who do not meet role‑related criteria. The content of that template referenced communication proficiency for another candidate and was not applicable to the Complainant.

After receiving the misaddressed email, the Complainant replied objecting to the stated justification for discontinuing her application. On receipt, the Recruitment Administrator escalated the matter the same day to Ms Redmond (Recruitment Manager). On 24 October 2024, Ms Redmond emailed the Complainant to request her availability for a call to discuss and resolve the issue; no response was received to that email.

There was no further correspondence until 13 November 2024, when the Complainant contacted the Respondent again, reiterating her objection to the stated reason for stopping the processing of her candidacy. By that time, the error had been identified internally since the initial attempt of Ms Redmond to contact the Complainant in October.

On 14 November 2024, Ms Redmond telephoned the Complainant, issued a full apology, and invited her to continue in the recruitment process. The Complainant declined to proceed. It was the conclusion of Ms Redmond that, at this time, the matter had been closed out and no further escalation or action was required.

When the Respondent received correspondence from WRC on 5 March 2025, in relation to the claim that the Complainant made, the matter was further escalated to Ms Dimitra Darra, Head of HR for the Respondent.

On 25 March 2025, Ms Darra contacted the Complainant directly with a view to discussing the matter, to fully understand, from her perspective, the issue at hand. During this call, the Complainant was clear that she did not want to engage with Ms Darra and also saying did not want anything to do with the Respondent at that time and all correspondence would be through the WRC. Ms Darra respected the wishes of the Complainant and did not engage in any further communication with her.

Application Process & Timeline of Events

The Complainant applied for a role as a Home Support Worker (‘HSW’) with the Respondent in early October 2024. On 17 October 2024, she was contacted by a member of the Recruitment Team – a Recruitment Administrator for an initial screening interview.

After this screening interview – which is the first stage of the recruitment process – the Complainant’s application status was updated on the applicant tracking system as “successful”.

A screenshot of activities entitled Engagement history was exhibited.

As part of the progression through the process, and in order to set up an interview, the Complainant was advised that she was required to submit compliance documents as per the Respondent’s recruitment policy.

An email of 25 October 2024 stated as follows.

“Hi,

Congratulations on reaching the next stage of your application process with Comfort Keepers Family. In order to schedule you for your interview we are still awaiting the following documentation. We kindly request that you forward to documents@comfortkeepers.ie

CV Proof of address Photographic ID (Passport/Full European Drivers Licence or PPS card) Copy of Visa/GNIB if applicable

We apologise in advance if you have submitted these documents previously, a member of our team will be in touch shortly.

Kind Regards,

Niamh”

The Complainant’s documents were uploaded to the ATS (Salesforce) on 22 October 2024, however at this time it was noted that the proof of address she submitted was not in line with the Respondent’s compliance regulations under the recruitment process.

On 23 October 2024, an email was sent to the Complainant from the Recruitment Administrator (via Salesforce) to advise that the Respondent would like to progress with her recruitment and book an interview for the role of Home Support Worker but that an updated proof of address document would be required.

An email dated 23 October 2024 was exhibited at the hearing. The email stated as follows.

“Hi Dalia,

We want to book you in for an interview.

Unfortunately, your banking document will not suffice as proof of address. It would have to be a bank statement or utility bill in your name dated within the last 6 months.

You can easily retrieve an online bank statement via your banking app if that is any help.

Please send the appropriate document on and we can continue with your application.

Kind Regards,”

This email proved that to that point, she was successful in obtaining an interview. Her interview booking was pending, awaiting updated proof of address documentation.

On 24 October 2024, the Complainant sent an email to Recruitment Manager, Ms Redmond, to confirm submission of documents.

While processing two candidates records in the ATS, the Recruitment Administrator noted that the Complainant’s profile remained pending due to outstanding compliance documents. At the same time, a separate candidate tab—relating to an applicant who did not meet the communication-proficiency criterion—was open. By clerical error, the “unsuccessful” template intended for that other candidate (which referenced language requirements) was misaddressed to the Complainant.

The email of 24 October 2024 stated.

“Hi Dalia

Thank you for reaching out to us. We appreciate the time you put into your application. Unfortunately, we will not be continuing with your application. We require a high standard of spoken English to able to communicate and assist clients.

Please re apply again down the line if your English improves. Wishing you best of luck with your future endeavours.”

This message did not reflect any assessment or decision regarding the Complainant’s application.

When the Complainant received the email, she replied objecting to the decision in writing.

Email from the Complainant to the Recruitment Administrator 24 October 2025 at 10:16

“Thanks for your opinion about my English language.

I dare to object to the formation of your opinions due to the fact that you have never heard me speak live and have never invited me to an interview.

I dare to add that I have lived in Ireland for 20 years, I am married to an Irish guy and 99% of my clients are English speaking.

By writing such a message, you appear to be incompetent.

I will shar your message and opinion with many.

You more likely missed a hard working person.

Many regards”

Upon receipt of this email, a review was undertaken by the pre-screening team, and this was subsequently recognised as an error and escalated appropriately to the department manager, Ms Redmond (Recruitment Manager). This notification was by way of a discussion within the office environment and not a formal documented meeting. It was not the intention of the Recruitment Team to decline the Complainant’s application at this point.

Ms Redmond then, on 24 October 2024 at 15.30, sent an email to the Complainant asking for her availability to take a telephone call to discuss the matter. This email was unanswered by the Complainant.

Email of 24 October 2024 at 15:30

“Hi

Would you mind giving me a call when you are free

Thank you so much.

Kind regards,

Niamh.”

On 13 November 2024, the Complainant sent her message to care@comfortkeepers.ie rather than the designated recruitment mailbox (recruitment@comfortkeepers.ie) identified in the Respondent’s standard candidate communications. Because care@comfortkeepers.ie is a client-facing inbox and not the primary recruitment channel, there was a real risk the message would not be promptly seen or could be missed. The email was nevertheless identified and forwarded to the Recruitment Manager the same day for escalation.

This email outlined the Complainant’s feedback on the recruitment process and questioned how the outcome of the process was communicated to her as having a “poor standard of English”.

It is important to note that, the Complainant, at this date had not responded to the earlier email of 24 October 2024 from Ms Redmond, requesting an appropriate time for them to discuss the matter.

On 14 November 2024, Ms Redmond placed a telephone call to the Complainant to discuss the matter. During this call, which the Complainant engaged with, a full apology for the error as well as a thorough explanation of the error was given to her and an invitation to continue in the recruitment process was extended to the Complainant. At this point, the Complainant declined to participate further in the process. The Complainant stated in this call that she did not reply to the email that Ms Redmond sent on the 24 October 2025 as she was insulted by it. The Complainant was not open to reapplying for the role or further progressing with her original application and the matter was then closed out without further escalation. However, after a further apology during this telephone call, the Respondent understood that the matter was resolved.

No further correspondence, either verbal or via email was received from the Complainant. A matter of months after this phone call, on 5 March 2025, the Respondent received correspondence from the Workplace Relations Commission regarding the allegation of discrimination against the Complainant in relation to the recruitment process.

Recruitment Process in relation to the Complainant

Due to the nature of the Respondent’s service and as part of the Respondent’s recruitment standards, in order to appoint a new Home Support Worker, the Respondent makes sure that the communication standards are high and language in not a barrier between its clients and Home Support Workers as the Respondent needs to ensure that clients' needs are met at all times.

The Respondent’s recruitment procedure for HSW has six phases:

1.       Pre-screening

2.       Documents collection from those successful

3.       Move to interview phase

4.       Move to training phase

5.       Move to shadowing

6.       Starting work

In this case phase 1 “Pre-screening and Documents Collection” is of relevance. In this phase the steps are the following:

Phase One - Applicant Management by Recruitment Team

An applicant will have a unique account on Salesforce (SF) – this may be created:

·       Automatically when an applicant applies;

·       Manually in the case of a potential applicant’s details being gathered at an open day or equivalent;

The online application should include an up-to-date curriculum vitae (CV).

A member of the Recruitment Team will complete the pre-screening phone call. This call will ascertain the following:

·       the level of experience,

·       whether the applicant has the relevant qualification QQI,

·       the method of transport (walker or driver to determine the distance the clients can be allocated at),

·       right to work in Ireland / EU,  

·       the level of English of the applicant.

After this pre-screening, if candidates meet all the above criteria and documents that verify eligibility to work are sent to the Recruitment Team, an agent will book the applicant in for a formal interview.

The Complainant was contacted on 17 October 2024 in relation to the role of Home Support Worker, which she had applied for. She was successful in this pre-screening and compliance documents were requested as per policy, these were uploaded to Salesforce on 22 October 2024.

The request for compliance documents means that she was successful in securing an interview and then she was contacted on 23 October 2024 to provide an alternative proof of address so that an interview could be booked and confirmed with her.

An email sent to the Complainant on 23 October 2024 stated as follows:

“Hi Dalia,

We want to book you in for an interview.

Unfortunately, your banking document will not suffice as proof of address. It would have to be a bank statement or utility bill in your name dated within the last 6 months.

You can easily retrieve an online bank statement via your banking app if that is any help.

Please send the appropriate document on and we can continue with your application.

Kind Regards,”

Full Recruitment Standard Operating Procedures were exhibited at the hearing.

Overview of Recruitment Process for Home Support Workers (HSW)

It is a requirement to ensure that all new Home Support Worker staff starting work with the Respondent receive adequate training and assessment in advance of commencing employment with the company.

The Respondent has a duty of care and obligation under the HSE Service Level Arrangements to ensure all potential candidates are fully supported and have successfully completed the induction training prior to being offered a contract of employment. This is a requirement to enable them to prepare to deliver a safe, quality service in line with the Respondent’s and the HSE values, commitment and scope of practice.

1.       Candidate applies for HSW role

2.       Candidate contacted for phone screen interview

3.       Interview Notes completed and loaded to Salesforce

4.        If interview successful, candidate invite to attend induction training (classroom based)

5.       Conditional contract of employment issued – condition is that the candidate must successfully complete this training in order to be moved to next phase of induction training. This contract is not an offer of employment

6.       Application form completed

7.       Reference 1 Requested

8.       Reference 1 Checked

9.       Reference 2 Requested

10.   Reference 2 Checked

11.   Garda clearance requested

12.   International Police Clearance (if living outside of Ireland >6 months)

13.   Proof of Identification requested (passport, drivers licence)

14.   copy of GNIB – reference number – (if applicable)

15.   All documents saved to Salesforce System (the Respondent’s secure system)

16.   Once induction training, shadow shifts and all supporting documents received then candidate is moved to the contracting stage

17.   Contract issued – if & when (as per working availability for candidate)

18.   Contract issued

19.   Training – Formal HSW Training

20.   Training Disclaimer

21.   Training confirmation of completion

22.   Handbook Acceptance Form

23.   Hand Hygiene Learnupon training completed

24.   Children First Training completed

25.   Safeguarding Vulnerable Adults Course Completed

26.   Dementia Training Completed

27.   File signed for release

The Respondent submits that it operates high-volume recruitment, and the pre-screening team processes a large number of candidates daily. Updates to candidates’ profiles in Salesforce (ATS) are managed by the Recruitment Administrators.

At the pre-screening stage, where an applicant is unsuccessful, a standard template email issues to inform the candidate of the outcome.

In this instance, the Recruitment Administrator had been in the role for approximately three weeks and was still completing training. Unfortunately, while she was managing multiple candidates with several Salesforce tabs open, a clerical misaddressing occurred: the pre-screen “unsuccessful” template intended for another candidate was sent to the Complainant. This message did not reflect any assessment or decision regarding the Complainant’s application. This error was due to human error and not in any way a deliberate act.

Conclusion

The Respondent denies that any discrimination occurred in the Complainant’s recruitment process. The reference to language/communication proficiency that the Complainant received arose solely from a clerical misaddressing of a standard “unsuccessful” template intended for another candidate. No assessment or adverse decision was ever made about the Complainant’s communication skills, and she had in fact progressed to interview, pending submission of outstanding compliance documents.

Communication proficiency is a legitimate, role-related requirement for Home Support Workers, applied consistently and non-discriminatorily to ensure safe, effective care for clients and compliance with HSE standards. In this case, that criterion was not applied to the Complainant at all—the email she received did not reflect the Respondent’s view or any decision on her candidacy.

On becoming aware of the error, the responsible team acted promptly and reasonably: the matter was escalated the same day; on 24 October 2024 Ms Redmond emailed the Complainant seeking availability to discuss; and on 14 November 2024 Ms Redmond telephoned, issued a full apology, and invited the Complainant to continue in the process. The Complainant declined to proceed.

Accordingly, there is no evidence of less favourable treatment on any prohibited ground, no discriminatory decision, and no causal detriment attributable to the Respondent. The facts show a communication error that was swiftly acknowledged and remedied, coupled with a genuine offer to reinstate the candidacy.

The Respondent is a fair employer that treats candidates, employees, and clients with respect and in line with its values and policies.

At the adjudication hearing, it was submitted on behalf of the Respondent that the Respondent employs some 1,200 carers in Ireland. It deals with a very high level of applications and hires some 20 carers per week. 47.1% of these are non-Irish nationals. Ms Darra, Head of HR falls into this category. The Respondent ensures that they all comply with visa requirements and it applies for visas for those whose permits had expired.

Ms Darra, on behalf of the Respondent submitted that there are some 500 applications processed weekly and the Respondent follows the same process. It was submitted that at the stage when the Complainant had moved to the next stage, the Respondent already knew her nationality. During the initial call, the Complainant was asked whether she lived outside Ireland, the Complainant sent a copy of her passport. The Respondent was aware of her nationality, and she was successful and progressed to the next stage. In the meantime, the Recruitment Administrator sent an email in error. When the Recruitment Administrator realised the mistake, she immediately alerted her manager who, in turn, contacted the Complainant. There was no communication from the Complainant until her email in November.

Ms Darra suggested that nearly 50% of the workforce is non-Irish, she could not see a reason why the Complainant would be the one discriminated against.

Ms Darra submitted that she contacted the Complainant after she received the WRC notification. However, the Complainant said she did not know who Ms Darra was and that all the matters would be processed by the WRC.

Ms Kilcoyne, on behalf of the Respondent, clarified that on 20 October 2024, the Complainant furnished a copy of her ID and proof of address. These documents were uploaded to her records on 22 October 2024. At that stage, the Respondent was aware of the Complainant’s nationality.  The Recruitment Administrator then contacted the Complainant on 23 October 2024 regarding her proof of address and informed her that the Respondent wanted to book her for an interview. On 24 October 2024 the Complainant emailed the Manager informing her that she had already sent the required documents. On 25 October 2024, the Manager emailed the Complainant congratulating her on reaching the next stage if her application. The Recruitment Administrator in error sent the “unsuccessful” email on 24 October 2024.

Summary of direct evidence and cross-examination of Ms Redmond, Lead Processing Manager (“Recruitment Manager)

Ms Redmond gave evidence that the Recruitment Administrator started some 2-3 weeks prior to 24 October 2024. On that day she was working on emails, uploading documents, pre-screening candidates and calling for interviews. There could be over 100 emails daily to deal with, and a number of screens are opened at the same time.

Ms Redmond said that the Recruitment Administrator alerted her that she had sent wrong email to a wrong person in error while jumping from one screen to another. Ms Redmond immediately rang the Complainant but there was no answer. She sent an email to follow up and asked the Complainant to contact her.  She said that she wanted to talk to the Complainant to explain and apologise.

Ms Redmond said that there was no contact from the Complainant until her email of 13 November 2024. She rang and spoke with the Complainant on 14 November 2024. She explained what had happened. She explained that due to the huge volume of communication, it was a genuine error.

Ms Redmond stated that during the pre-screening, the Respondent engages with the prospective candidates over the phone to establish their level of communication skills. In the role, there are communication challenges such as mask wearing, no facial expressions and lip reading, etc.

Ms Redmond said that at any given time, there would be some 200 candidates waiting for an interview. Twice a week, she sends emails to all regarding required documents. For that reason, in her email, she apologises if the documents had already been submitted.

The Complainant alleges that she was discriminated against by the Respondent on the grounds of her race in the recruitment process. The Respondent rejects the claim.

The Law

The Employment Equality Act, 1998 as amended provides in the relevant parts as follows.

6. Discrimination for the purposes of this Act

(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which—

(i)      exists,

(ii)     existed but no longer exists,

(iii)   may exist in the future, or

(iv)   is imputed to the person concerned,

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

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

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

Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows – (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”).

8. Discrimination by employers etc.

(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.

Burden of proof

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.  It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her.  If she succeeds in doing so, then, and only then, is it for the Respondent to prove that there was no infringement of the principle of equal treatment.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. 

The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v Valpeters EDA0917where it held that Section 85A:

"…. 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.”

In Cork City Council v McCarthy EDA0821, the Labour Court stated as follows about the burden of proof:

“The type or 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 appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In order to shift the burden of proof to the Respondent, the Complainant must not only establish the primary facts being relied upon but must also establish that those facts are of sufficient significance to raise an inference of discrimination.

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.”

Comparator

Section 28 of the Acts in relevant parts provides that:

“28. The comparators

(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

(g) in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors;”

I note that in this case, the Complainant did not provide a comparator.

Time limit

Section 77 provides as follows:

”(5)(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant's notice.

(6A) For the purposes of this section—

(a) discrimination or victimisation occurs—

(i)      if the act constituting it extends over a period, at the end of the period,

(ii)     if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii)   if it arises by virtue of a provision which operated over a period, throughout the period,

(b) a deliberate omission by a person to do something occurs when a person decides not to do it, and

(c) a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either—

(i)      does an act inconsistent with doing it, or

(ii)     the period expires during which the respondent might reasonably have been expected to do it.’

The time limits which govern the referral of complaints under the legislation are provided for in Section 77 of the Acts (as set out above). The effect of these provisions is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the WRC unless the discrimination in issue is part of a continuum of events.

The Complainant referred the within complaint to the Director General of the WRC on 14 January 2025. Therefore, the cognisable period for the purpose of the complaint in accordance with the time limits provided for in section 77(5) of the Acts is the six-month period prior to the referral of the complaint, namely from 15 July 2024 to 14 January 2025.

The issue for consideration by me is whether or not the Complainant as a Lithuanian national was subjected to discriminatory treatment on the grounds of race when she received the Respondent’s email of 24 October 2024.

There was no dispute that the Complainant applied for a position in the Respondent organisation on 11 October 2024. On 17 October 2024, a staff member of the Respondent contacted the Complainant on the phone. An initial pre-screening telephone conversation took place. I note that during the call, the Complainant was asked questions related to her nationality. She was asked whether or not she required a visa/permit to work in the State, and, at the hearing, the Complainant suggested that she also volunteered with providing information on her work experience in the USA. It appears that at this early stage, the Respondent was on notice of the Complainant’s nationality, or at the very least, of the fact that she was not an Irish citizen.  As part of the process, the Complainant was requested during the call to forward copies of her photographic ID, proof of address and visa/work permit, if applicable.

There was no dispute that the Complainant did so on 20 October 2024. In full knowledge of her nationality, having obtained a copy of the Complainant’s passport, the Recruitment Administrator reverted to her on 23 October 2023 stating clearly “We want to book you in for an interview” and requesting a proof of address that meets the relevant requirements. It is clear from this communication that the Complainant was successful at the pre-screening stage at which the level of spoken English is assessed, and she proceeded to the interview stage.

Separately and, it appears, without linking the events that unfolded on 24 October 2024 to the candidate she emailed, the Lead Processing Manager, Ms Redmond, emailed the Complainant on 25 October 2024 stating:

“Congratulations on reaching the next stage of your application process with Comfort Keepers Family. In order to schedule you for your interview we are still awaiting the following documentation. We kindly request that you forward to documents@comfortkeepers.ie

CV Proof of address Photographic ID (Passport/Full European Drivers Licence or PPS card) Copy of Visa/GNIB if applicable

We apologise in advance if you have submitted these documents previously, a member of our team will be in touch shortly.”

Ms Redmond gave compelling evidence at the hearing that this is a standard email she sends twice a week to all candidates who were successful at the pre-screening stage.

However, in the meantime, on 24 October 2024, the event, which the Complainant alleges was discriminatory occurred when the Recruitment Administrator sent the “unsuccessful” email to the Complainant.

I note that once the error came to light, the Recruitment Administrator immediately informed the Recruitment Manager, who then attempted to contact the Complainant by phone and, when she received no reply, followed up by email. While the email could have been clearer regarding its purpose, it is surprising that the Complainant chose to disregard it and did not return the call or respond to the message. This is particularly unexpected given that, the following day, she received an email congratulating her on progressing to the next stage of the application process. In these circumstances, and considering the potential confusion created by the conflicting communications, it is difficult to understand why the Complainant opted not to engage with the Respondent and instead concluded that she had been subjected to discrimination.

Having carefully considered the matter, I accept the Respondent’s position that the email of 24 October 2024 was issued in error, and the Respondent immediately attempted to communicate with the Complainant to explain the issue and apologise. 

In any case of alleged discrimination, the Complainant must first prove the primary facts upon which she relies to advance a claim of discrimination. If the primary facts are proved, or are admitted, the Adjudication Officer must be satisfied that they are of sufficient significance to raise a presumption of unlawful discrimination such that the burden of proof shifts to the Respondent.

Having regard to the oral and written submissions made and evidence provided, I find that the Complainant has not established sufficient facts from which it could be inferred that she was subjected to less favourable treatment or discrimination on the ground of her race.

I declare this complaint to be not well founded. The Complainant has failed to establish a prima facie case of discrimination on the grounds of race.

Race- discrimination