EDA2680

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00050256 (CA-00061800-001)

BACKGROUND:

The employee appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 2 September 2024.

Labour Court hearings took place on 1 April, 22 May,19, 20 August and 26 November 2025.

The following is the Determination of the Court:

DETERMINATION:

1. Background

The matter before the Court is an appeal of an Adjudication Officer decision (Adj-00050256, CA-00061800-001, dated 23 August 2024) in a complaint made by an employee against her former employer under the Employment Equality Act 1998 (“the Act”).

The Adjudication Officer held that the complaint was not well founded.

A Notice of Appeal was received by the Court on 29 August 2024. An application made by the employee to have the hearing held in private and the decision anonymised was granted by the Court, due to the sensitive nature of the appeal which included allegations of sexual harassment.

The employee had legal representation at a virtual hearing conducted on 1 April 2025 which was adjourned after the appeal opened due to technical difficulties.  The employee represented herself as a lay litigant at a hybrid hearing conducted on 22 May 2025. That hearing was adjourned due to technical difficulties. The appeal and two linked appeals EDA2678 and TED2622 were concluded over three days on 19 and 20 August 2025 and 26 November 2025.

Linked appeals lodged under the Employment Equality Act,1998, Payment of Wages Acts, 1991, and Protection of Employees (fixed-Term Work) act, 2003, were withdrawn by the Complainant after the hearing of 1 April 2024.

The parties are referred to in this Decision as they were at first instance. Hence, the employee is referred to as “the Complainant” and the former employer is referred to as “the Respondent.”

2. Position Submission and evidence from the Complainant – summary

The Complainant gave evidence under affirmation.

The Complainant submits that she was discriminated against by her employer on the grounds of Gender, Civil Status and Disability. The Complainant was subject to unlawful discrimination in relation to training, conditions of employment, victimisation, harassment and sexual harassment.

The Complainant was subject to discrimination on the gender ground when multiple colleagues made comments about her romantic interests, which were structured in a way to attack her integrity and to embarrass her such that she could not complete her tasks efficiently.

The Complainant submits that she was subject to sexual harassment on 15 September 2023 when a colleague, Mr McD., was training the Complainant asked her “if he should just come over” which she understood as inviting himself over to her house.  This statement was followed by earlier comments made by him that “he wants to do it the right way” and “but I am the one who is giving you training” when he thought someone else would ask her out.  On 18 September 2023, Mr McD. yelled at the Complainant for no reason and ran out of the office. He falsely accused the Complainant of making him uncomfortable when they were just discussing work. This happened three days after he asked the Complainant “if he should just come over.”

The Complainant was subject to discrimination on the civil status ground, as the Complainant told colleagues in a casual conversation in the office that she was not married. Comments were made by a colleague and the office manager in front of her line manager, Mr S., that the Complainant did not have a life when she worked overtime.

The Complainant submits that she was subject to discrimination on the disability ground. She has a rare thyroid inflammation condition that combines two thyroid illnesses. The Complainant did not disclose the condition to her employer at the start of her employment, as she manages the condition with daily medication. The Complainant was robbed on the Luas on 29 July 2023 and suffered a shock reaction which affected her appearance because of her thyroid illness. On her return to work the Office Manager made nasty comments about her. She was unwell and took sick leave. On her return to work the Complainant informed her line manager that she had a thyroid illness and that she could die in cases of extreme stress and anxiety. While her illness is under control, it gets worse in extreme stress.

The Complainant was subject to daily insults and attacks on her personal integrity which caused her huge stress.

On 14 September 2023, the Complainant was locked in the workplace on purpose by warehouse staff, when she stayed late working overtime. The entire evening warehouse shift left half an hour early before the official closing time and she was locked into the building. The next day she overheard comments from the office that she “was asking for it.” It was not an accident as the warehouse staff could see the Complainant through the window, and they all knew that she was still there. The Complainant did not know that they were leaving as the official closing time was 10 pm.

The Complainant was subject to discrimination in relation to access to training, as Mr S., her line manager, did not know anything about her role. Negligent supervision by him enabled other employees to do and to say what they wanted. The Complainant was given a second role in relation to pre-delivery notification entries which exposed errors and uncompleted work in the warehouse. The first meeting she had about her role with her line manager was on 15 September 2023, three months after she had started work.

The Complainant was trained in the role by Mr McD, who lied to her line manager about her progress in the role. Mr S conducted meetings with Mr McD, another male about her role in her absence which is gender discrimination. He never checked to verify statements made by Mr McD, except when he said that the Complainant was responsible for an error worth €25,000, even though she never worked on that task. Her line manager confirmed that it was not her fault.

On 19 September 2023, the Complainant initiated a meeting with her manager to raise workplace issues with him. The grievance meeting morphed into a performance review meeting. The Complainant was subject to victimisation after reporting that she was subjected to harassment and sexual harassment due to inappropriate comments and behaviour by colleagues. As a result, she was given poor performance grades as a threat. Her line manager gave untrue statements about the meeting and backdated the performance review document to 15 September 2023.

The Complainant did not expect to experience a toxic work environment and or to be subject to attacks on her integrity. Her line manager could have addressed matters relating to the structure of her role, the inappropriate behaviour in the workplace and suspicious errors. Instead, she was discriminated against on the grounds of her gender, disability, and civil status.

3. Position of the Respondent - summary

The Complainant was employed in the role of Accounts Payable Specialist from 12 June 2023 to 4 October 2023. She did not pass her probationary period due to performance and conduct issues. Her employment was terminated on 4 October 2023 following a formal performance review process.

The Respondent refutes the assertions that the Complainant was discriminated against on any of the protected grounds. The Complainant has not established any facts of discrimination or proffered any example of less favourable treatment on the ground of gender, civil status, or disability.

The Complainant never disclosed any disability to the Respondent. The Complainant completed a standard medical questionnaire on commencing employment, in which she confirmed that she had no medical conditions of which the employer should be aware. She submits that following an incident on the Luas where she was robbed on 29 July 2023, she took a few sick days and informed her line manager on her return to work that she had a thyroid illness. The Respondent was never made aware of any thyroid illness.

The Complainant makes several unsubstantiated assertions that are inconsistent with her own changing narrative of events. As an example, the allegation that the Respondent ‘locked’ the Complainant into the building on 14 September 2023 is a serious accusation, which is completely at odds with an email exchange the following day when the Complainant emailed her line manager, Mr Savage, to say:- “I lost track of time yesterday practicing speed and predels to be all in. I did not realise that nobody is there anymore. I will apologise to Helen one more time. I think all will be doable in regular hours from now on (sic)." ln response, Mr Savage emailed the Complainant stating, "lt is dangerous for you to be working on your own in the office and certainly this is not the place to be walking around on your own at 10.30 at night. I want the tasks to be doable in normal hours. l do not expect anyone to be working those kind of hours". There is no mention in this email of the Complainant being locked in the building. This email exchange highlights the inconsistencies between what the Complainant alleges in her submission and the reality of what occurred.

The Complainant alleges that her line manager, Mr S., was "negligent in his supervision”. She asserts that "does not know anything about the role he hired me for and thus he can not be my supervisor'. For the avoidance of doubt, Mr S. was the Complainant's line manager and supervisor and is an experienced professional.

The allegation that the Complainant’s line manager gave her poor performance grades in response to her reporting allegations of harassment and sexual harassment to him on 19 September 2023 is denied. The Respondent's decision, in undertaking a performance review process, was not a "reaction" to a complaint of discrimination made by the Complainant. No complaint of discrimination was made.

The Complainant's dismissal was based on grounds of performance and conduct. The decision to terminate her employment was made in accordance with her contract of employment, following a performance review process.

The Complainant has failed to discharge the burden of proof in relation to the various allegations of discrimination she has made in her complaints. She has not established any facts of discrimination or proffered any example of less favourable treatment. The allegations raised by her do not relate or amount to discrimination within the Act and are without merit. The Respondent respectfully requests that the complaints are dismissed on the grounds that they are "frivolous, vexatious, misconceived and relating to a trivial matter."

4. Testimony

The Court heard testimony from two witnesses on behalf of the Respondent – Mr S., Financial Controller and Ms N, HR Director. 

Evidence of Mr. S – Financial Controller

Mr S was the Complainant’s line manager. He gave evidence that he conducted a probation review meeting with the Complainant on Friday 15 September 2023 and outlined to her that she required improvement across several areas. He met with her again on 19 September 2023 to go through and to sign the completed review form. That meeting was not instigated by the Complainant, as alleged.

A follow-up review meeting set for 26 September 2023 was rescheduled to 4 October due to work commitments. The Complainant’s performance was still not at the required standard.  Mr. S. outlined to the Complainant issues with work performance and her interactions with colleagues, who had raised concerns about her behaviour which was aggressive and argumentative.  One member of the team had said that he was uncomfortable in her presence. He used the term ‘conduct’ not ’misconduct’.

At the meeting the Complainant raised issues about inappropriate comments made by a colleague. Ms F., about the Complainant’s weight and hair, and about her relationship with Mr McD. There was no reference to harassment or sexual harassment, or comments about the Complainant being pregnant.  Mr S. paused the meeting at that point, to investigate the matter. No-one had any knowledge of any comments. Mr S. made the decision to end the employment relationship after reconvening the meeting. The Complainant’s conduct at the meeting was a contributing factor; the meeting was chaotic; the Complainant was disruptive, interruptive and her tone was aggressive; she talked across him and would not let people speak. He informed the Complainant that he had decided to end her employment with immediate effect.

Mr S. rejected the assertion that the Complainant was dismissed for opposing harassment or sexual harassment. He said that the Complainant raised no issues about harassment or sexual harassment during her employment. The first time that she raised any matters was at the review meeting on 4 October 2023. The only matters raised related to alleged comments about her hair and weight.  There was no mention of sexual harassment, which is a serious allegation.  The first time he heard the comment about Mr McD. saying ‘just come over’ was at the WRC.  He never heard any comments alleging that the Complainant was romantically interested in Mr McD. He was aware that the Mr McD. had walked out of the office after some comments by the Complainant.

Mr S. said that he was not aware of any disability, and the Complainant never mentioned a thyroid problem. He met with the Complainant on her return to work in August.  She was visibly upset about the incident when she was robbed and her medical certificate referred to ‘anxiety’. He would have remembered if she had, as he himself has a thyroid condition.  She never told him that ‘she could die within minutes’ as alleged. If she did, he would have been very concerned.

Mr S. said that the assertion that he had told the Complainant that ‘we all have families at home’ baffled him and did not make sense.

5. The Relevant Law

Section 2 of the Act defines the term “Civil Status” as follows: -

“"civil status" means being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved”

Section 2 of the Act defines the term “Disability” includes: -

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;

Section 6 (1) of the Act address discrimination for the purposes of this Act as follows: -

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,

Section 6 (2) of the Act addresses the discriminatory grounds for the purposes of this Act as follows: -

(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”),

(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”),

Section 8 of the Act address discrimination by employers and states as follows: -

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.

Section 14 of the Act addresses harassment and sexual harassment and provides as follows:

14A.— (1) For the purposes of this Act, where—

(a) an employee (in this section referred to as "the victim") is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as "the workplace") or otherwise in the course of his or her employment by a person who is—

(i) employed at that place or by the same employer,

(ii) the victim’s employer, or

(iii) a client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it,

or

(b) without prejudice to the generality of paragraph (a)—

(i) such harassment has occurred, and

(ii) either—

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

7) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.

Section 74(2) of the Act addresses victimisation and provides as follows:

“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…”

Section 85A (1) of the Act addresses the burden of proof and provides as follows: -

85A.— (1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

6. Deliberations

In any case involving an allegation of discrimination the Court must first consider the allocation of the burden of proof between the Complainant and the Respondent, and whether primary facts can be established from which discrimination can be inferred.

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.”

Gender Ground

The Complainant submits that she was the butt of jokes in the office and people made comments that she was romantically involved with a colleague, Mr McD. She gave evidence that she was subjected to sexual harassment on 15 September 2023 when Mr McD. made inappropriate comments to her by asking, ‘if he should come over,’ which she took that to mean that he wished to come over to her place of residence. The Complainant contends that she initiated a meeting with Mr S., her line manager, on 19 September 2023 to discuss the matter with him, however, that meeting morphed into a performance review meeting. The Complainant said that she informed her line manager about the harassment and sexual harassment and there was an obligation on the Respondent to investigate her complaints, which did not happen.

Mr S.’s evidence was that no complaint of sexual harassment was ever made during a performance review meeting and the first mention of sexual harassment was made by the Complainant when she lodged complaints to the WRC. His evidence was that the Complainant raised issues about inappropriate comments made by a colleague (Ms F) about the Complainant’s weight and hair, and about her relationship with another colleague (Mr McD) during the final review meeting on 4 October 2023. He said that this was the first time that any issues were raised by the Complainant, and she made no reference to harassment or sexual harassment.

The Court preferred the evidence of Mr S. over that of the Complainant in relation to her allegation of sexual harassment. The Court found the Complainant’s testimony to lack credibility. She refused to answer many questions put to her in cross-examination, and when she did, the answers were frequently evasive or deliberately obtuse. The Court accepts Mr S.’s evidence that the first time the Complainant raised workplace issues was at the performance review meeting on 4 October 2023 and that no matters relating to gender discrimination or sexual harassment were raised by her at that meeting.

The Court notes that on the following day, 5 October 2023, the Complainant submitted a lengthy formal grievance to the Respondent in which outlined in detail over five pages various issues that arose during her employment. The Complainant describes the issues as ‘bullying’, ‘harassment’ and ‘discrimination’. There is no mention of the term sexual harassment, nor any details given by the Complainant alleging sexual harassment.

Having regard to the evidence proffered, the Court is satisfied that the Complainant has not made out a case that she was subject to sexual harassment or that she made a complaint of sexual harassment to her Respondent during her employment.

The Complainant further contends that she was subject to discrimination on the gender ground as she was excluded from a meeting about her attended by her line manager, Mr S., and Mr McD. - both of whom are male. The Court notes that Mr McD. was assigned to train the Complainant in her role by Mr S. The Court finds no basis to the Complainant’s assertion that she was excluded from a meeting based on her gender. Having regard to the evidence proffered, the Court finds that the Complainant has not established sufficient facts from which it may be inferred that she was discriminated against on the gender ground.

The Complainant has not established a prima facie case of discrimination on the gender ground. The Court finds that this aspect of her complaint is not well-founded.

Disability Ground

The Complainant submits that (i) she suffered from a disability within the meaning of the Act, (ii) the Respondent was on notice of that disability and (iii) the Respondent subjected her to victimisation and harassment on the disability ground.

TheComplainant’s evidence was that she suffered from a thyroid condition which she contends is a disability for the purposes of the Act. The Complainant accepts that she did not disclose any disability to the Respondent when completing a medical questionnaire on commencing employment. Her evidence was that her condition was under control at that time, so she saw no need to disclose that information. She relies on a conversation that she had with her line manager, Mr S., on her return to work in mid-August from a period of sick leave to assert that the Respondent was on notice of her disability.

The Complainant and Mr S. gave different accounts of that conversation. The Complainant’s evidence was that she informed Mr S. about her disability and told him that she could die in cases of extreme stress and anxiety. She said that her thyroid problem affected her weight and appearance, which explained the change in her appearance on her return to work after she was robbed when travelling on a tram. Mr S recalled the conversation with the Complainant as she was visibly upset after the robbery incident. He denied that the Complainant ever mentioned a thyroid problem, which he said he would have remembered, as he himself has a thyroid condition. He denied that she told him that she could die within minutes. His evidence was that if she had made such a statement, he would have been very concerned and sought advice on that matter.

The Court found Mr S. to be a credible witness, in contrast to the Complainant who had difficulty answering questions posed to her by Counsel for the Respondent and by the Court. The Court accepts Mr S.’s clear and cogent evidence that he was not aware that the Complainant suffered from a thyroid condition. No evidence was proffered to suggest that any other staff from the Respondent company were on notice of the Complainant’s disability.

Having regard to the evidence proffered, the Court is satisfied that the Respondent was not aware of that the Complainant had a disability for the purposes of the Act at the time material to her claim. As the Respondent was not on notice of the Complainant’s disability, the Court finds that there is no basis to her complaint that she was subjected to discriminatory treatment or that she was victimised by the Respondent on the disability ground.

The Complainant has not established a prima facie case of discrimination on the disability ground. The Court finds that this aspect of her complaint is not well-founded.

Civil Status

The Complainant contends that she was subject to discrimination on the civil status ground, as colleagues were aware that she was not married. The Complainant asserts that comments made by colleagues in front of her line manager that she ‘did not have a life’ when she worked overtime constitute discrimination on the civil status ground. Ms S denied ever hearing such a comment. The Complainant further asserts that Mr S made a discriminatory comment to her when he said, ‘we all have families at home.’  Mr S. said that he was baffled by that assertion and had no recollection of making such a comment.

The comments relied upon by the Complainant to ground her complaint of discrimination on the civil status ground are disputed. The Court accepts the testimony of Mr S that he never heard a comment made about the Complainant that she ‘did not have a life.’ Mr S. said that he could not recall ever making a comment about his family or work life balance. In the Court’s judgment, the Complainant has not established any relevant facts from which it could be inferred that she was subject to discrimination in relation to training, victimisation and conditions of employment on the ground of her civil status. The Court find no basis to support the contention that the Respondent discriminated against the Complainant on the civil status ground.

It is for the Complainant to prove the primary facts upon which she relies to raise a presumption of discrimination. Having regard to the evidence proffered, the Court finds that the Complainant has not established sufficient facts from which it may be inferred that she was discriminated against on the civil status ground. Accordingly, the Court finds that there is no basis to her complaint that she was subjected to discriminatory treatment or victimised on the civil status ground. The Complainant has not established a prima facie case of discrimination on the civil status ground. The Court finds that this aspect of her complaint is not well-founded.

Victimisation

The Act provides protection for workers against adverse treatment in consequence of making a complaint or exercising a right under the Act. The dismissal or adverse treatment must be in reaction to the employee having made “a protected” act, i.e., a complaint of discrimination to the Respondent.

The Complainant submits that she was subject to a toxic work environment and victimised under the Act when she was locked into her workplace on the night of 14 September 2023. It is not disputed that the Complainant was locked into the company premises on the night in question, which no doubt was a distressing event for her.  Mr S. told the Court that he was very concerned to hear that she was working unapproved overtime and was locked into the office late at night. 

The Complainant proffered no evidence that she made any complaint of discrimination or harassment on a protected ground under the Act prior to the evening of 14 September 2023 when she was locked into the warehouse building. Emails exchanged with her manager the following day, which were opened to the Court, do not indicate any complaint of harassment or discrimination.

The Complainant contends that she was subject to further victimisation after reporting to her line manager on 19 September 2023 that she was subject to harassment and sexual harassment, as she was given a poor performance rating backdated to 15 September 2023. The Court has established that no complaint of sexual harassment was made to the Respondent before the Complainant lodged her complaint under the Act to the WRC. Accordingly, the Complainant cannot assert that she received a poor performance rating in retaliation for making a complaint of sexual harassment.

Having regard to the evidence proffered, the Court finds no evidence that the Complainant made a complaint of discrimination or harassment to the Respondent in relation to any of the protected grounds cited by her in this appeal such that she can assert that she was subject to victimisation for making such a complaint. The Court finds that the Complainant has not established a prima facie case of victimisation. Therefore, the Court finds that this aspect of her complaint is not well-founded.

While the Complainant asserts that she was subject to bullying behaviour by colleagues, the Court’s jurisdiction in the within appeal is confined to assessing whether she was subject to discrimination, harassment or victimisation related to the protected grounds cited. The Complainant made several assertions in respect of her claims of discrimination which she wished to rely on as facts. It is for the Complainant to prove the primary facts upon which she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so, her complaint cannot succeed. In this case, the Court finds that the Complainant has not established sufficient facts to infer that she was discriminated against on the protected grounds cited such that the burden of proof under the Act shifts to the Respondent.

7. Finding

For the reasons set out above the Court finds that the Complainant has not established a prima facie case of discrimination or victimisation on the gender, disability or civil status ground. 

Accordingly, the Court finds the complaint is not well founded.  The Adjudication Officers decision is affirmed.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
FC	______________________
21 January 2026	Deputy Chairman

NOTE

Enquiries concerning this Determination should be in writing and addressed to Ms Fiona Corcoran, Court Secretary.