Complainant

Respondent

Parties

Balint  Nogrady

Ttm Healthcare Solutions Ltd

Representatives

  Self Represented

John Barry Management Support Services (Ireland) Ltd

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-00071711-001

16/05/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00071711-002

16/05/2025

The Complainant was engaged by the Respondent (who are a Recruitment Agency) as a Health Care Assistant and commenced work with the third party “Hirer” which will be called hereafter as MQ on 14/2/2024 and his last day of work was 12/1/2025.  He alleged he was discriminated against on ethnic and race grounds and was misclassified in his job category and denied doing higher grade work unfairly and that the Respondent did not pay the same rate as staff engaged by the “Hirer”.

The Complainant stated to the Hearing that he was discriminated against by the Respondent. The Complainant complaint form stated he was discriminated against because of his ethnic or national origin. On questioning by the Adjudicator the Complainant advised the Hearing he was Bi Caucasian and a naturalised Irish person. He advised he felt he was discriminated against in comparison to HealthCare Assistants on the site next to him. He believed Irish nationals were being treated differently to other ethnic staff. He advised he had no specific Comparator but had the phone number of one person on a roster but would not disclose the name for GDPR reasons.  He advised he had a photo of the shift roster. He believed he had supplied all the necessary documents to be classified for “Framework” work (in effect HSE work) and was mis classified by the Respondent.  He stated he contacted many people in management to resolve his grievance but his calls were ignored. He felt the Respondent had no intention to resolve his grievance. He felt Irish nationals were not subject to this treatment.  

The claims before the Adjudicator have been taken by Mr Balint Nogrady, hereinafter referred to as the Complainant against TTM Healthcare Solutions, hereinafter referred to as the company, under section 77 Employment Equality Act, 1998, wherein he is claiming he was discriminated against by reason of his race, and The Protection of Employees (Temporary Agency Work) Act, 2012, wherein the Complainant maintains he did not receive the same working conditions to which a comparable worker would be entitled.

The company operates as an employment agency specialising in the provision of temporary agency staff within the health care sector. Within this sector, the service is provided to what is known as Framework clients, which would be public health providers such as the HSE, and non-framework clients, who would be providers of health care services within the private sector.

In August 2024, the Complainant applied for a placement with the Agency and was interviewed on the 9th August for an available position as an MTA Domestic/Support worker, which he passed. He was subsequently interviewed for and assigned by the Agency to work with a client who fell within the non-framework category of service providers, in September 2024, as a Support Worker on their premises

This placement was able to happen as the Complainant complied with certain criteria, as specified by the client. This criterion is at a lower level to that which would be necessary for someone to be eligible to be placed in a Framework Service provider.

At onboarding, it was also made clear to the Complainant by Rachel Farrelly, recruitment consultant, that there were no available openings for HSE hospital shifts as additional compliance checks would be required and, at that time there were no vacancies available.

The Complainant worked on this location as required by the client and the working week was between 8 and 18 hours, depending on the requirements of the client, as confirmed by the Complainant in his documentary evidence provided. It would appear that he could have had up to 5 shifts a week but according to his manager, Rachel Farrelly, he “tends to only accept two”

The Complainant accepted this assignment, but after a period of time began requesting additional work and a willingness to work across a range of geographical areas surrounding the Dublin Area.

Unfortunately, because the Complainant had only been approved for the lower level of compliance, it was not possible to place him in HSE related operations, which were the areas he was seeking to work in, and there were no equivalent “non framework” vacancies at the time.

At this time the Complainant was reminded that to be eligible to work for a Framework Client, it was necessary for him to satisfy the higher level of compliance. Details of the necessary compliance criteria were provided.

Subsequent to these discussions the Complainant expressed, and on a phone call with Ms Farrelly, that he was not happy with the shifts at MQ, nor was he happy with the level of pay. He verbally requested Ms. Farrelly to remove him from these shifts, even though he had been advised there were no other similar posts available at that time. The company subsequently implemented his request and took him off the rota. Despite the fact that the Complainant was entitled to seek work from any other agency or employer at this time, the Complainant raised concerns in writing with the company that he believed he was being unfairly restricted and there were others with similar qualifications who were working,and continued to insist that he be assigned work in Framework based operations. However, he did not identify who he was referring to.

Despite multiple explanations and reassurances from the Talent Acquisition Team and his Recruitment Consultant, explaining to the Complainant what would be required from him to achieve compliance standards, the Complainant continually failed to provide the requested information. The criteria were not matters that should be difficult to provide but of course would cause any client to question why they were not provided.

The Complainant was contacted on the 22nd April by Orla Carney, talent Acquisition Specialist regarding assisting the Complainant to achieve the higher compliance levels and the Complainant responded stating he had already provided the full HSE credentials and was now seeking compensation. In response HR advised that if the Complainant did not wish to provide the information required then the company respected his decision. However, clearly without his co-operation progression to the HSE opportunities would not be available to him.

The explanations provided explain that he was compliant only for MQ type work and, when he signed up with the Agency, this was the only work available at the time. He was also made aware of the fact that he needed to provide additional information if he wished to work in the higher-level establishments, (e.g., Garda vetting, Clinical OH, vaccination records, updated references). In relation to the work he had been doing in MQ, it was also explained that it was dependent on the requirements of the client and the company had no control over the number of shifts it could assign to Agency staff.

Regrettably the Complainants’ written communications became increasingly accusatory and at times unprofessional, including language which was perceived as disrespectful towards the team and their colleagues. In response to this behaviour HR issued reminders to the Complainant regarding TTM’s Dignity at Work Policy and encouraging respectful communication going forward.

Despite this behaviour, and the repeated offers made to support the Complainant in achieving a compliance upgrade, the Complainant continued to allege discrimination and claimed this “discrimination” included when our client, MQ, ceased agency bookings with TTM, a decision which was made by the client and communicated to TTM.

As of 24th April 2025, MQ no longer required TTM agency staff, with the last shift booked by them with any TTM staff was on 24th April 2025. To date the Complainant has still not provide the necessary information to be compliant for Framework clients, despite being repeatedly invited to do so, and the fact that a Final communication from HR was issued on 25th April 2025, reiterating: a. TTM’s willingness to support him through the compliance process. b. The nature of agency work and contract conditions. c. That no further communication issued unless initiated professionally by Complainant.

 LEGAL POSITION CA 00071711-001

The Employment Equality Acts 1998-2015 (the “Acts”) prohibits discrimination in employment-related areas on nine protected grounds, which includes the race ground. Discrimination on grounds of race occurs where a person is treated less favourably than another is, has been or would be treated, where the other person is of a different race. Burden of proof.

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:  “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 company to prove the contrary.”

In the determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held: “The first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a Complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if 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 company to prove that there is no infringement of the principle of equal treatment.” It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination.

In Cork City Council v McCarthy EDA 21/2008, the Court stated in this regard: “The type or range of facts which may be relied upon by a complainant may 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 7 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 Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The complainant alleges he was discriminated against because of his race. In a claim of discrimination under the Act it is for the complainant, in the first instant, to establish surrounding or primary facts which could lead to an inference that discrimination has occurred, before the burden of proof shifts to the company. There is a three-tiered test for establishing if the burden shifts to the Respondent which is often referred to as the “Mitchell” test. It provides: - 1) It is for the complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the complainant fails to do so, he or she cannot succeed. 2) If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination. 3) If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the respondent (Mitchell v Southern Health Board [2001] ELR 201). The company maintains no evidence has been provided which could raise a presumption of discrimination except an unsubstantiated allegation that other employees, including Irish born employees, were treated differently, therefore the complaint should fall at the first hurdle.

The complainant has also failed to provide a comparator, that being someone with the same compliance standards as the Complainant, and of a different race, who was assigned work in a position that required satisfaction of a higher level of compliance. The company would maintain that the lack of a comparator makes grounding a case of discrimination a very difficult task.

Company position.

The company has been, at all times, transparent as to the reasons why the Complainant was unable to be assigned to Framework based positions, to the extent that it has identified what was required, offered to assist him if necessary, and despite some unacceptable behaviour, has continued to be supportive.

The Complainant has also maintained he was at a financial loss throughout this period. However, the Respondent would not be the only company who provide Agency staff into the healthcare sector, and there were no restrictions preventing the Complainant from seeking work with other agencies. The Respondent are sure, that if he had done so, and sought the same type of positions he was trying to force the company give him, he would not have been successful. However, other agencies would have possibly had non framework positions that they could have offered him.

 The Complainant has also suggested he was victimised by the company who, he has alleged, removed him from MQ.. He has stated that he “ contacted several managers , including the general manger, requesting clarification, reinstatement, or deployment. “

As referred to above, the Complainant was the one who requested to be moved. We would suggest that if he had been removed in the manner he is claiming, then why were there no complaints made to the company seeking to be reinstated in that role, or any grievances raised in accordance with the company procedures, as there is no doubt, as evidenced by his persistence in seeking to be allowed to work for framework clients, he had no issue raising matters of concern to management.

CA00071711-002 Section 2 of the Protection of Employees (Temporary Agency Work) Act, 2012 provides; “Agency worker” means an individual employed by an employment agency under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the employment agency” “basic working and employment conditions” means terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hirer, and that relate to— (a) pay, (b) working time, (c) rest periods, (d) rest breaks during the working day, (e) night work, (f) overtime, (g) annual leave, or (h) public holidays; “contract of employment” means— (a) a contract of service, or (b) a contract under which an individual agrees with an employment agency to do any work for another person (whether or not that other person is a party to the contract), whether the contract is express or implied and, if express, whether it is oral or in writing; “employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works (or, where the employment has ceased, entered into or worked) under a contract of employment;  “Employment agency” means a person (including a temporary work agency) engaged in an economic activity who employs an individual under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the first-mentioned person; “hirer” means a person engaged in an economic activity for whom, and under the direction and supervision of whom, an agency worker carries out work pursuant to an agreement (whether in writing or not) between the employment agency by whom the agency worker is employed and the first-mentioned person or any other person; “overtime” means any hours worked in excess of normal working hours. “pay” means— (a) basic pay, and (b) any pay in excess of basic pay in respect of— (i) shift work, (ii) piece work, (iii) overtime, (iv) unsocial hours worked, or (v) hours worked on a Sunday, but does not include sick pay, payments under any pension scheme or arrangement or payments under any scheme to which the second sentence of the second subparagraph of paragraph 4 of Article 5 of the Directive applies; The Protection of Employees (Temporary Agency Work) Act 2012 gave effect to Directive 2008 /104/ EC In Labour Court Recommendation AWD 231, ISM Recruitment V Jan Brocki, the Court outlined the purpose of the Act as;  “to ensure that an agency worker is treated no less favourably than a comparable employee working as an employee for a hirer, in respect of those matters comprehended by the Act “ Based on the provisions of the Act and decisions of the Labour Court, it is clear that an agency worker is entitled to be treated in the same way as an employee of the hirer, in respect of certain terms and conditions of employment. In this case the Complainant is maintaining he had been treated less favourably than comparable employees, but this appears to refer to other employees assigned by the Agency itself, and not those of the hirer in this case. He has also failed to outline exactly in what way he believes he has been treated less favourably. As stated, the Complainant appears to be comparing himself with other Agency workers who are working on different sites for different clients, or as referred to under the Act, different Hirers. The company contend that if this is the case then the claim cannot fall within the requirements of this Act, as there is no such requirement under this Act to be compared with other Agency workers assigned to different hirers, as they are neither permanent employees or employees of the Complainants Hirer.

Company position; The company does not deny that the Complainant was an agency worker and was assigned to a client which was not subject to the stringent compliance rules of a Framework Client. The company also recognises its obligations under the legislation regarding the minimum terms and conditions it is required to apply to all agency staff, and we do this for all agency staff throughout all our clients. We also contend that in relation to this claim, the Complainant has not made out a case to support a claim that we have breached this Act, which is that he believes other agency workers, who have qualified at the same level of compliance as himself, were allowed to work in positions where a higher level of compliance was required. However, even if that were the case, for the purpose of this Act his comparison is with comparable permanent workers and not agency workers in other employments. We contend this is not a matter that is addressed under the Protection of Employees

Employment Equality Act law;

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

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

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

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

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

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

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3)(in this Act referred to as “the age ground”),

(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”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”). “

The Protection of Employees (Temporary Agency Work) Act, 2012 (the Act) stipulates that an agency worker should be entitled to equal treatment in respect of their basic working and employment conditions:

1.- “basic working and employment conditions” means terms and conditions of employment required to be included in a contract of employment by virtue of any enactment or collective agreement, or any arrangement that applies generally in respect of employees, or any class of employees, of a hirer and that relate to –

(a)    pay,

(b)    working time,

(c)     rest periods,

(d)    rest breaks during the working day,

(e)    night work,

(f)      overtime,

(g)    annual leave, or

(h)    public holidays

“pay” means –

(a)    basic pay, and

(b)    any pay in excess of basic pay in respect of –  

(i)      shift work, (ii) piece work, (iii) overtime, (iv) unsocial hours worked, or (v) hours worked on a Sunday,  

but does not include sick pay, payments under any pension scheme or arrangement or payments under any scheme to which the second sentence of the second subparagraph of paragraph 4 of Article 5 of the Directive applies;

Application of Act.

3.- This Act applies to agency workers temporarily assigned by an employment agency to work for, and under the direction and supervision of, a hirer.

Basic working and employment conditions of agency workers.

6. – (1) Subject to any collective agreement for the time being standing approved under section 8, an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment.

Obligations of hirers to agency workers.

14. – (1) A hirer shall, as respects access to collective facilities and amenities at a place of work, treat an agency worker no less favourably than an employee of the hirer unless there exist objective grounds that justify less favourable treatment of the agency worker.

(2) In this section “collective facilities and amenities” includes –

(a) canteen or other similar facilities,

(b) childcare facilities, and

(c) transport services.  “

Findings

The Complainant set out the same basic complaint under both Acts. The Complainant case under the Equality Act was that he was discriminated against because of his race and/or his ethnic origin but he did not set out his ethnic or national origin in the complaint form or in his brief submission prior to the Hearing and was asked by the Adjudicator at the Hearing to advise his situation. The Complainant advised he was bi-Caucasian and of European origin and a nationalised Irish person. The Complainant was asked to explain this further and he advised he was born in Bulgaria.  In the Complainants submission he did not set out a Comparator as required by both Acts and this was explained to the Complainant by the Adjudicator that this was a core requirement for him to set out to his case under each Act and the Comparator requirements were different under each Act.  This was explained in detail to the Complainant (as he was self represented) and as he had not set these out in his complaint form or submission and did not appear to understand that these were essential requirements to pursue his complaints. The Respondent Representative had no objection to the Complainant being advised of these requirements (and they had also set them out in their submission). Despite repeated attempts by the Adjudicator to explain what the Complainant had to prove to be successful in his complaints he did not appear to grasp this and wanted to just set out a pre prepared statement. The Complainant was asked had he a specific TTM employee as a Comparator for his complaint under the Employment Equality Act and despite repeated attempts by the Adjudicator to explain the importance of this to his case the Complainant failed to identify a Comparator and proceded to set out his case generally and to focus on compensation for his loss of earnings.  It was also explained to the Complainant that he had to identify a Comparator that worked for the “hirer” under the Temporary Agency Work Act and he said that he did not know the name of the Company he was assigned to and that he would only provide a phone number on a roster as a Comparator for both complaints. When advised this was not an acceptable Comparator as it was too vague the Complainant advised he would not provide a named person for GDPR reasons.  

This complaint alleges Section 6 (h) of the Equality Act applies but the Complainant set out his complaint in very generic terms and failed to identify  “another person”  as a Comparator who had better terms than he had. The Complainant was requested a number of times to set out an identifiable person who worked for the Hirer that had terms of employment that were better than the Complainants, The Complainant just set out his view that Irish staff were treated differently to him and that some Irish staff were not subject to the same compliance terms as his to be allowed work in Framework employers. The Respondent Representative set out the efforts of various Respondent staff to try determine the Complainants grievance but this ended when the Respondent did not provide any detail and the communications were deemed to be disparaging of staff. The Respondent Representative stated they get the terms of any “Hirer” company they place staff with and ensure the Respondents terms match the Hirers as required by the Act. The Respondent Representative stated that despite repeated attempts in the past the Complainant had not provided details of any person who had better terms than him doing the same job and even if he provided them now they would be willing to examine the veracity of the allegation. The Complainant was asked by the Adjudicator did he know any employee of the Respondent or the “Hirer” that he was comparing himself to and the Complainant informed the Hearing he did not know the name of the Hirer and did not have the details of any “Hirer” employee. The Respondent Representative advised that the Complainant only worked 2 of a possible 5 shifts per week available to him and did not provide any evidence that he was engaged by any other Agency to do the work he said he was in compliance to do.

Section 85A provides that where a Complainant establishes facts from which discrimination may be inferred it then falls to the Respondent to prove that the principle of equal treatment was not infringed. The established test for ascertaining if the burden of proof shifts to the Respondent was set out by this Court in Mitchell v Southern Health Board [2001] E.L.R. 201. That three-tier test provides: -

1)    It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination.  If the Complainant fails to do so. he or she cannot succeed.

2)    If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

3)    If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent, (Mitchell v Southern Health Board [2001] ELR 201)

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that: -

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

No evidence was submitted by the Complainant that he was subject to discrimination on the grounds of his race or nationality.

Having considered the submissions I find the Complainant did not supply the Respondent with the details required, or meet the requirements at the time, for him to be assigned to the “Framework” roles and has not established any prima facia breach of the Employment Equality Act and his complaint is not well founded.

The Complainant failed to identify the name of the Hirer or any staff member of the Hirer doing similar work to the Complainant on better terms than the Complainant and his claim under the protection of Employees  (Temporary Agency Work Act) 2012 is not well founded.

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. I find the Complainant has not established any breach of the Act and his complaint is not well founded. CA-00071711-001

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. I find the Complainant has not established any breach of the Protection of Employees (Temporary Agency Work Act) 2012 and his complaint is not well founded. CA-00071711-002.

Discrimination