Complainant

Respondent

Parties

Stephen  Molloy

Bidvest Noonan (ROI) Limited

Representatives

Self-represented

Johanne Duignan, Ledwith Solicitors

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-00073352-001

10/07/2025

Background:

The Respondent is a provider of outsourced facilities and security services operating throughout Ireland. The Complainant commenced employment with the Respondent on 16 August 2022 as a Security Officer and was assigned to a security contract at St. Luke’s Nursing Home in Cork. His working pattern consisted principally of weekend shifts together with a Monday night shift. It was established that this roster arrangement remained in place throughout the majority of his employment.

The Complainant resigned his employment in April 2024 but subsequently sought to return to work. The Respondent facilitated his return and issued him with a new contract of employment in June 2024 while preserving his continuity of service from August 2022. Following his return, the Complainant resumed the same roster pattern that he had worked prior to his resignation.

The complaint before me was presented pursuant to the Employment Equality Acts 1998–2015 and concerns an allegation of discrimination on the family status ground. The complaint arises from the what the Complainant terms was the Respondent’s refusal to exempt the Complainant from weekend working at his assigned location. The Complainant contended that the Respondent failed to meaningfully accommodate his request and instead proposed alternatives involving transfers to retail locations, irregular shifts which did not suit the Complainant’s needs. He further submitted that no structured process was followed, and that the Respondent failed to consider the substance of his request.

The Respondent denied that any discrimination occurred. It submitted that the Complainant had worked the same weekend-based roster throughout his employment and had expressly agreed to resume that arrangement when he returned to work in 2024. The Respondent argued that when the request for a roster change was made in June 2025, no reference was made to any disability affecting the Complainant’s husband and that management understood the request simply to be one arising from caring responsibilities for a spouse. The Respondent further submitted that the site in question operated with only three security personnel and that it was not operationally possible to alter the roster in the manner requested. Evidence was given that management explored alternative assignments at other locations within Cork City and also considered other possible arrangements, but that the Complainant declined these options.

The Respondent further contended that the complaint was misconceived in law. It argued that the statutory definition of family status contained within the Employment Equality Acts does not extend to caring responsibilities for a spouse unless the employee falls within the specific statutory category of a resident primary carer, who is a parent of a person with a disability. The Respondent maintained that it had never been informed that the Complainant’s husband had a disability and therefore could not have discriminated on that basis. It further submitted that the Complainant had failed to establish facts from which discrimination could be inferred and had therefore failed to discharge the burden of proof required under section 85A of the Acts.

The Complainant submitted that he was subjected to discrimination on the family status ground arising from the Respondent's refusal to amend his working arrangements so as to relieve him from weekend working responsibilities.

The Complainant gave evidence that his husband was diagnosed with Motor Neurone Disease in early 2024. He stated that the diagnosis had a profound impact upon family life and created significant caring responsibilities. He explained that, while support had initially been available from family members and carers, this became increasingly difficult to sustain as family members returned to work. He stated that his priority was to be available to care for his husband at weekends.

The Complainant explained that he had sought a change to his roster because he needed greater availability at weekends. He stated during the hearing: “my husband is severely sick, and I needed weekends off”. He maintained that he requested a roster adjustment in order to facilitate his caring responsibilities and was disappointed by the Respondent's response.

The Complainant submitted that he raised the matter with management but was repeatedly referred elsewhere within the organisation. He described difficulties identifying the appropriate person with whom to discuss the issue and expressed the view that there was an absence of meaningful engagement. He stated that when he sought weekends off in order to care for his husband, the Respondent's response was to suggest alternative assignments at retail locations. He gave evidence that he was offered positions at locations such as Eurogiant and Lidl but regarded these proposals as unsuitable.

The Complainant explained that St. Luke's Nursing Home was situated only a short distance from his home and enabled him to balance his caring responsibilities with his work commitments. He stated that the alternative assignments involved locations further away from his residence together with later finishing times and irregular shift patterns. He described the proposals as not being accommodating of his circumstances and stated that by the time he would return home from some of the proposed shifts, his ability to care for his husband would be adversely affected.

The Complainant maintained that he did not wish to return to retail security work, having previously undertaken such work during the Covid-19 period. He stated that he wished to remain assigned to St. Luke's Nursing Home and sought a modification of the roster at that location. His evidence was that the Respondent's proposed solution was effectively to remove him from a location where he was content working rather than addressing the issue that he had raised.

The Complainant further submitted that he was not seeking special treatment but rather a fair redistribution of weekend work. He expressed the view that the roster should be rotated among security personnel and stated that he had suggested that all employees should have the opportunity to work weekends. During cross-examination he stated that he wanted “the roster to be changed” and that “every security crowd I've ever worked for before was always rotated on a weekly basis”. He considered that a rotational system would have afforded employees a better work-life balance while enabling him to meet his caring obligations.

In his written response to the Respondent's submissions, the Complainant rejected the contention that his complaint was merely based on caring for a spouse. He submitted that the relevant issue was that he was the resident primary carer for his husband, who had ongoing health and disability-related care needs requiring regular support. He contended that he had not used legal terminology when initially raising the issue but had clearly communicated the practical reality of his circumstances. He argued that an employee should not be expected to understand or employ precise statutory language in order for an employer to appreciate the substance of a request. The Complainant disputed the Respondent's assertion that no reference had been made to disability-related needs. While accepting that he had not expressly used the word “disability” in his communications, he submitted that he had clearly identified that his request arose from his husband's health and care requirements. He contended that, if the Respondent required further clarification regarding the nature of those needs, this should have been explored through a proper process rather than simply rejected.

The Complainant also relied upon the Respondent's Flexible Working Policy. He submitted that the policy envisaged a structured process involving consideration of the request, a discussion regarding its implications and the exploration of alternatives. He contended that this process was not followed and that his request was not properly assessed when first raised. According to the Complainant, the Respondent's own correspondence subsequently acknowledged that the matter had not been formally explored at the outset.

In relation to the alternatives proposed by the Respondent, the Complainant submitted that they did not meaningfully address the problem he had identified. He stated that the alternatives involved different locations, uncertain and irregular shifts, continued weekend work or reduced hours that were not financially viable. He maintained that he did not simply refuse alternatives but rather explained why those alternatives did not solve the caring difficulties which had prompted his request.

The Complainant further submitted that his complaint should not fail because he did not invoke the Respondent's grievance procedure. He maintained that he had already clearly raised the issue with management and believed that it was not being addressed appropriately. He therefore brought the matter to the Workplace Relations Commission when he concluded that the internal process had failed to deal with the substance of his concerns.

Respondent's Case

The Respondent denied that the Complainant had been subjected to discrimination on the family status ground or on any other protected ground. It submitted that the complaint was fundamentally misconceived both in fact and in law and that the Complainant had failed to establish a prima facie case of discrimination pursuant to section 85A of the Employment Equality Acts 1998–2015 (“the Acts”)

In her opening submission, Ms Johanne Duignan, solicitor for the Respondent, outlined the employment history of the Complainant and submitted that he had worked a fixed roster comprising Saturday and Sunday day shifts together with a Monday night shift throughout his employment. It was submitted that the Complainant resigned his employment in April 2024 but subsequently sought to return to work in May 2024. The Respondent facilitated his return and preserved his continuity of service, after he had taken annual leave, and recommenced work in August 20224.   The representative stated that, at the time of his return, the Complainant expressly agreed to continue working the same roster arrangement as had previously applied.

The Respondent submitted that the Complainant worked those shifts without issue until June 2025 when he sought to be relieved from weekend working. It was argued that the Respondent engaged fully with that request, sought to discuss the matter to explore alternatives. However, the Complainant declined the alternatives proposed and insisted upon remaining in his existing location while being exempted from weekend duties and expressly told the Respondent that he did not like to return to security in retail outlets.

Mr John O'Connell, Security Operations Manager, gave evidence that he had been involved in facilitating the Complainant's return to employment following his resignation in April 2024. He stated that the Complainant contacted him seeking to return to work and that the Respondent accommodated that request. He confirmed that the Complainant returned to the same assignment at St. Luke's Nursing Home which he had previously occupied. Mr O'Connell stated that the Complainant had historically worked a roster consisting of weekend shifts together with a Monday night shift and that there had been no issue raised regarding those arrangements for a considerable period following his return to employment. He gave evidence that no concerns regarding the roster were raised between the Complainant's return in August 2024 and June 2025.

In relation to the request for altered working arrangements, Mr O'Connell stated that the Complainant contacted him seeking weekends off. He explained that there were only three security officers assigned to the site and that changing the roster in the manner requested would have disrupted the existing arrangements. He stated that he informed the Complainant that "we couldn't just change his roster". Mr O'Connell further gave evidence that no mention was made to him of any disability affecting the Complainant's husband. He was specifically asked whether there had been any reference to Motor Neurone Disease or any disability-related condition and replied, in the negative, indicating that no such information had been provided to him. He rejected the Complainant's assertion that any discussion regarding Motor Neurone Disease had taken place when the Complainant sought to return to employment. Mr O'Connell also confirmed that, when he invited the Complainant to participate in a discussion regarding the request, the Complainant indicated a preference to deal with the matter by email rather than by meeting with management.

Mr Niall O'Shea, Senior Operations Manager, gave evidence that he became involved after the Complainant contacted him directly regarding the roster issue. He stated that the request presented to him was a request to move away from weekend working. He was asked specifically whether any reference had been made to disability and replied: "No." He stated that the reason advanced by the Complainant was that he "needed to care for his husband". Mr O'Shea stated that he considered the request and explored alternatives that could be facilitated within the operational requirements of the business. He gave evidence that he offered the Complainant alternative assignments at other locations, including Lidl and Eurogiant, where weekday work could be facilitated. He explained that the rosters at those locations operated on a two-week cycle and that, while some shifts involved later finishing times, they represented the only viable alternatives available.

Mr O'Shea stated that the Complainant declined those alternatives. He gave evidence that the Complainant's preference was to remain at St. Luke's Nursing Home while working weekdays only. According to Mr O'Shea, this was not operationally feasible because the weekday position was occupied by another employee who had been working those shifts since at least 2018. He explained that there were three security officers assigned to the site, one working weekday and two working weekends, and that it was not possible simply to displace another employee from an established roster arrangement.

The Respondent submitted that these interactions demonstrated a genuine effort to engage with the Complainant's request. It contended that management considered the feasibility of adjustments at the existing site, examined alternative assignments and sought to identify workable solutions. The Respondent maintained that the difficulty arose not from any unwillingness to consider alternatives but from the fact that no alternative arrangement acceptable to the Complainant could be identified.

In its written submissions, the Respondent argued that the complaint was misconceived because the Complainant did not fall within the statutory definition of family status contained in section 2 of the Employment Equality Acts. It submitted that the definition is confined to a person who is:

"a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years; or as a parent or the resident primary carer in relation to a person of or over that age with a disability."

The Respondent submitted that caring responsibilities for a spouse do not, of themselves, come within the protected ground and that, at no stage prior to the hearing, had the Complainant informed management that his husband had a disability. Therefore, it was argued that the Complainant could not establish that he possessed the protected characteristic upon which his claim was based.

The Respondent further submitted that the Complainant had failed to discharge the burden of proof required by section 85A of the Acts. Reliance was placed upon the decision of the Labour Court in Southern Health Board v Mitchell [2001] ELR 201, where the Court stated:

"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 the presumption of unlawful discrimination."

The Respondent also relied upon Melbury Developments Ltd v Arturs Valpeters [2010] 21 ELR 64, where the Labour Court held:

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

The Respondent submitted that the Complainant had failed at the first stage of that process because he had not established primary facts capable of raising an inference of discrimination. It was argued that there was no evidence of less favourable treatment, no comparator had been identified. The Complainant produced no evidence to show that employees outside the protected ground were treated more favourably.

The Respondent also rejected the Complainant's contention that there had been any obligation to provide reasonable accommodation. It submitted that the duty to provide reasonable accommodation arises only in circumstances where the employee concerned has a disability. As neither the Complainant nor his husband had been identified to management as a person with a disability during the relevant period, the Respondent argued that no such obligation arose. In any event, it submitted that management had sought to address the Complainant's concerns through the alternatives offered.

In closing submissions, the Respondent's representative reiterated that management had no knowledge of any disability affecting the Complainant's husband and therefore could not have discriminated on that basis. Ms Duignan submitted that the Respondent had been unaware of any protected characteristic and that the evidence demonstrated extensive engagement with the Complainant's request. She argued that the inability to accommodate the specific arrangement sought by the Complainant arose from operational constraints rather than any discriminatory motive. The representative submitted that the alternatives offered were rejected because the Complainant did not wish to work at those locations and that this reflected a matter of personal preference rather than discriminatory treatment.

Applicable Legislation:

Section 2 of the Acts defines family status as :”means responsibility—

(a)    as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b)     as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis, and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability;

The burden of proof is on a complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably on the discriminatory ground cited. Section 85A of the Act states as follows:

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

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the Director General under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant 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.”  

Section 85A of the Employment Equality Acts 1998–2015 provides that where facts are established by or on behalf of a complainant from which discrimination may be presumed, the burden of proof shifts to the respondent to prove the contrary. As the Labour Court subsequently stated in Melbury Developments Ltd, "mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn."

The first issue which arises in this case is whether the Complainant established that he came within the protected ground upon which he relies. The complaint was advanced on the family status ground. The Respondent correctly pointed to the statutory definition of family status contained in section 2 of the Acts, above.

The difficulty for the Complainant is that, throughout the exchanges which gave rise to this complaint, he communicated to the Respondent that he wished to be relieved from weekend working because he needed to care for his husband. The evidence of both Mr O'Connell and Mr O'Shea was clear and consistent that no reference was made to any disability affecting the Complainant's husband. Both witnesses were unequivocal in this regard. Mr O'Shea stated that the reason provided was that the Complainant "needed to care for his husband". Mr O'Connell similarly denied that any reference was made to Motor Neurone Disease or any disability-related condition.

Significantly, the first occasion on which the Respondent became aware that the Complainant's husband had been diagnosed with Motor Neurone Disease was during the hearing itself. Indeed, the Complainant candidly accepted during cross-examination that he had not informed the Respondent of that diagnosis when making his request. While the Complainant later suggested that such information may have been mentioned in a telephone conversation, I prefer the evidence of the Respondent's witnesses on this point. Their evidence was consistent with the contemporaneous correspondence and with the fact that no mention whatsoever of Motor Neurone Disease appears in the communications exchanged between the parties. Therefore, I am satisfied that the Respondent was never placed on notice that the Complainant was asserting rights as the resident primary carer of a person with a disability within the meaning of section 2 of the Acts. Rather, the Respondent understood the request as one arising from caring responsibilities for a spouse. In those circumstances, I find that the Complainant failed to establish the primary fact that he was treated adversely because he possessed the protected characteristic relied upon.

I also accept the Respondent's submission that the Acts do not impose a freestanding obligation upon an employer to provide reasonable accommodation to an employee because that employee is associated with a person who has a disability. The statutory duty of reasonable accommodation arises under section 16 of the Acts in respect of employees with disabilities. The Complainant's case was, in substance, that the Respondent ought to have altered his roster to facilitate his caring responsibilities. While such a request may be understandable from a personal perspective, it does not give rise to a legal obligation under Acts in the circumstances of this case. I am satisfied that the evidence demonstrates that the Respondent acted reasonably and constructively in its dealings with the Complainant.

 I note that the Complainant resigned his employment in April 2024. When he subsequently sought to return, the Respondent facilitated his reinstatement, preserved his continuity of service dating from August 2022 and returned him to the position which he had previously occupied. This was not an insignificant accommodation on the Respondent's part.

The evidence established that the Complainant's husband was diagnosed with Motor Neurone Disease in or around January 2024. Notwithstanding this, the Complainant continued to work the same weekend-based roster throughout the remainder of 2024 and until June 2025 without raising any issue concerning discrimination or family status. While I accept that caring demands may have increased over time, the fact remains that the Complainant continued to work the agreed roster for approximately a year after the diagnosis and after his return to employment.

 I am satisfied that the Respondent engaged meaningfully with the request once it was raised. Mr O'Connell invited the Complainant to discuss the matter, but the Complainant elected to deal with it by email. Thereafter, Mr O'Shea considered alternative arrangements and identified other assignments which would have enabled the Complainant to move away from regular weekend working. The evidence was that assignments were available at Lidl and Eurogiant and that the Complainant would have been rostered in those locations with advance notice of his shifts. The Complainant declined those alternatives because he did not wish to work in retail settings and preferred to remain at St. Luke's Nursing Home.

I accept the Complainant's evidence that these alternatives were not his preferred option. However, the fact that an employee does not like the alternatives proposed does not establish discrimination. The evidence before me was that the Respondent attempted to identify workable alternatives but that the Complainant rejected these because they did not align with his preferences.

 I accept the evidence of Mr O'Shea that the roster at St. Luke's Nursing Home could not be altered in the manner sought. The site employed three security officers. One employee had occupied the weekday position since at least 2018, while the remaining positions covered the weekend roster. Granting the Complainant's request would have required the Respondent either to displace a colleague from an established weekday roster or fundamentally alter a longstanding staffing arrangement. I accept the Respondent's evidence that such an arrangement was not operationally feasible and that it would have caused significant disruption to another employee who had been working those hours for many years.

I further note that the Complainant did not identify any actual or hypothetical comparator who had been treated more favourably in similar circumstances. No evidence was presented that another employee seeking exemption from weekend work had been accommodated while remaining in an equivalent role and location.

Having considered the evidence in its entirety, I find that the Complainant has failed to establish primary facts of sufficient significance to raise an inference of discrimination on the family status ground. The evidence demonstrates that the Respondent considered his request, engaged with him, explored alternatives, and declined the specific arrangement sought for legitimate operational reasons. The evidence does not establish that the Complainant was treated less favourably because of family status, nor does it establish any basis upon which discrimination could be presumed.

For the reasons outlined above, I find that the Complainant has failed to establish a prima facie case of discrimination within the meaning of section 85A of the Employment Equality Acts 1998–2015. The burden of proof therefore does not shift to the Respondent, and I find that the Complainant was not discriminated against by the Respondent on family status grounds.

Employment Equality Acts 1998-2015. Family Status.