EDA2629

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00051184 (CA-00062691-001)

BACKGROUND:

The Employee appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2021 on 29 April 2025. A Labour Court hearing took place on 20 May 2026.

The following is the Determination of the Court.

DETERMINATION:

1. This is an appeal by Mr Tom Halpin against a Decision of an Adjudication Officer (ADJ-00051184/CA-00062691-001), dated 19 March 2025, made under the Employment Equality Acts, 1998-2021 (the Acts) in a complaint of discrimination on the disability ground against Global Entserv Solutions Galway Limited. In that decision the Adjudication Officer decided that the Complainant had failed to discharge the burden resting on him to establish facts from which it might be inferred that he may have been subject to unlawful discrimination. The Adjudication Officer declared the complaint to be “not well founded”.
2. This appeal is linked with appeal no. ADE/25/62 which is a complaint of harassment on the disability ground.
3. In this determination, the parties are referred to in the same way as at first instance. Hence, Mr Halpin is referred to as “the Complainant” and Global Entserv Solutions Galway Limited as “the Respondent”.
4. A hearing of the Court was held on 20 May 2026 in Limerick. The Complainant was unaccompanied at the hearing. The Respondent was represented by Ms MP Guinness BL, instructed by Eversheds Sutherland LLP. The Court had the benefit of written submissions from both parties and also heard oral submissions from both parties, and the Complainant gave evidence under affirmation. No witnesses for the Respondent gave evidence.

Preliminary Applications made by the Complainant

Anonymisation of Determination

5. The Complainant made an application at the hearing that the determination of the Labour Court would be anonymised. The Complainant was concerned that sensitive personal medical information would be disclosed during the course of the hearing and reflected in the Court’s determination and sought anonymisation on that basis.
6. Hearings of the Labour Court are held in public unless the Court is satisfied there are special circumstances which demonstrate that the hearing should be heard otherwise than in public. There is no specific jurisdiction vested in the Labour Court regarding the anonymisation of parties in determinations save that the practice is that where hearings are heard otherwise than in public determinations arising from those hearings do not generally include the names of the parties.
7. The Court has regard to the principle that justice should be administered in public and that the issues identified by the Complainant could affect many claims under the Acts, particularly those alleging discrimination on disability grounds. In circumstances where there was no dispute regarding the nature of the disability making it unlikely that detailed confidential evidence would be required, and where the Court could exercise its discretion in the context of what information it included in its determination, the Court concluded that there were no special circumstances which merited conducting the hearing otherwise than in public. The hearing proceeded in public.

Exclusion of Respondent’s Submission

8. The Complainant requested that the Court exclude from its considerations the Respondent’s submission on the basis that it was submitted outside the time limits set out in the Labour Court rules.
9. The Labour Court Rules 2024, made pursuant to section 20(5) of the Industrial Relations Act 1946, provide, in respect of a case under the Acts, that the appealing party has three weeks from the date on which the notice of appeal is delivered to the Court to furnish its written submission to the Court. The appeal was submitted on 29 April 2025 and the Complainant furnished his submission on 16 May 2025, within the time limit set out in rule 7. Rule 8 provides that “the Respondent shall send a replying submission to the Court within three weeks of the date on which a copy of the Appellant’s submission was sent to the Respondent”. The deadline set for the Respondent to provide its submission was 5 June 2025. A submission was provided by the Respondent, by email, on 10 June 2025 and a hard copy submission was provided on 12 June 2025. The Complainant noted that an extension of time for delivery of submissions had not been sought by the Respondent pursuant to rules 11 and 12. In subsequent written submissions to the Court the Complainant maintained that the late submission by the Respondent undermined procedural fairness and prejudiced his position. The Complainant’s view was that the Court Rules were unambiguous and he considered that they should be rigidly applied. In evidence the Complainant did not identify any prejudice he suffered from the Respondent’s late submission.
10. The case was scheduled for hearing in June 2026, some twelve months after the Respondent’s submission was received.
11. The Court Rules are in place inter alia to ensure cases can be efficiently scheduled and processed. The rules in respect of claims under the Acts allow for submissions well in advance of any hearing date. Where there are deviations from the rules there can be appropriate sanctions imposed including refusal to admit certain documentation not provided in sufficient time to enable parties and the Court to consider same in advance of the hearing. While the Respondent missed the deadline for sending its submission by a week, that breach of the rules some twelve months in advance of the hearing date did not prejudice the Complainant and did not hinder the efficient running of the proceedings. The Court did not consider it appropriate, or beneficial to the conduct of the hearing, to exclude the Respondent’s submission.

Summary of the Complainant’s Submission and Evidence

12. The Complainant made written submissions and gave evidence to the Court. The Complainant set out that he commenced employment with the Respondent in February 2013. He described suffering from a chronic underlying condition, diagnosed in 2009, before developing cancer in 2020, with a further cancer diagnosis in 2022 which resulted in him being hospitalised from May 2022 until October 2022. He returned to work on a phased basis in October 2023 before returning full-time in January 2024. The Complainant’s employment with the Respondent terminated by reason of redundancy in June 2024.
13. Significant details of the Complainant’s medical condition were provided to the Court. The Complainant considered that he had a disability as defined in the Acts.
14. During the Complainant’s absence from work he entered the Respondent’s long-term illness scheme. The Complainant described the scheme as excellent and that it was a great comfort to him and his family during his illness. However, in the operation of the scheme the Complainant encountered a multiplicity of issues. The Complainant noted that an issue arose in February 2023 when Revenue made a tax demand on him which had arisen from the incorrect treatment of sick pay by the Respondent. Further issues included non-payment of a working from home allowance since 2014; pension contributions not being paid on entry to the scheme and employee contributions not being paid during the scheme; payment of an allowance as taxable rather than tax free; incorrect pay on return to work; incorrect carry forward of holidays from 2023 to 2024; overpayment in February in respect of money due for underpayment of pay in October 2023 being paid twice, once in January and once in February. In respect of the Respondent ceasing to make his pension contributions the Complainant noted that the Respondent had notified him that they had done so “as usual” but that he had expressly elected to continue with his contributions.
15. The issues the Complainant complained of, and which he said were discriminatory on disability grounds, were in terms of the application of the scheme and the effect it had on him. The Complainant said that the issues required him to raise multiple (12) HR cases, between March 2023 and February 2024, the resolution of which took on average 49 days, with the longest single resolution taking 200 days.
16. In addition to raising HR cases, the Complainant submitted two grievances, one on 20 June 2023 and one on 4 March 2024. The 2023 grievance was upheld, the Respondent apologised and a payment was made to the Complainant in respect of losses he incurred. In the 2024 grievance the Complainant acknowledged that all his previous grievances had been investigated and resolved to his satisfaction. The 2024 grievance was upheld regarding the failure in the practical application of the long-term illness policy but the Complainant’s claim that the application of the policy constituted harassment was not upheld. The Complainant appealed the harassment finding but his appeal was not upheld, albeit the Respondent acknowledged the failures and errors that had occurred. The Complainant acknowledged that he had received multiple apologies from the Respondent for the errors and the stress caused to him. He further acknowledged that he had ultimately received all the benefits to which he was entitled but objected to having had to fight for his entitlements during such a difficult time for him.
17. The Complainant’s submission was that the multiplicity of errors affecting him as a person with a disability constituted discrimination on grounds of disability in respect of his terms and conditions of employment. The Complainant submitted that his comparators were Irish based employees of the Respondent without a disability or his pre-disabled self. He provided his own statistical analysis of the error rate occurring noting one error over nine years (212 payroll runs), an error rate of 0.089%, prior to his disability when on standard payroll compared to 12 errors in 21 payroll runs, while on the long-term illness scheme, an error rate of 54%. He considered that it was statistically improbable that others experienced the same error rates and that the frequency of errors he experienced constituted less favourable treatment of him on grounds of disability.

Submission of the Respondent

18. The Respondent did not dispute that the Complainant was a person with a disability as defined in the Acts.
19. The Respondent accepted that the errors outlined by the Complainant had occurred, and had been subject to complaints to HR, all of which had been investigated and resolved such that the Complainant had ultimately received all of his entitlements. The Respondent did not dispute that the errors and the processes required for their resolution had significantly impacted the Complainant during a difficult time for him when he was in recovery from his long-term illness. The Respondent said that a HR case officer was assigned to the Complainant during the period.
20. The Respondent submitted that while there were multiple process failures in the operation of the long-term illness scheme, which were unacceptable, this did not constitute discrimination. The Respondent said that the payroll payments for 110,000 global employees, including those under the long-term illness scheme, were processed outside Ireland. The Respondent said that the data processed was largely quantitative, numerical data which was by its nature impersonal and handled in volumes and quantities in which it can be very difficult to distinguish between any specific individuals. The Respondent maintained that anyone processing the data would not have had information on the Complainant’s specific disability.
21. While acknowledging the errors were unacceptable the Respondent’s position was that there was no discrimination involved. The Respondent considered that the Complainant had not discharged his burden of proof in demonstrating discrimination on grounds of disability and pointed out that the fact that the Complainant had a disability (which was not disputed) did not shift the burden of proof to the Respondent.

Relevant Law

22. Section 8(1) of the Acts provides that 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.

23. Section 6(1) of the Acts provides that:

“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”)…

24. Section 6(2)(g) provides that: “As between any 2 persons, the discriminatory ground (and the description of those grounds for the purposes of the Act) are – that one is a person with a disability and the other is not, or is a person with a different disability (in this Act referred to as “the disability ground”.

25. Section 2 of the Acts defines "disability" as:-

"(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.”

Burden of Proof

26. Section 85A(i) of the Acts deals with the burden of proof and states that: -

"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 to the contrary."

27. In Southern Health Board v Teresa Mitchell [2001] ELR 201, the Labour Court set out the evidential burden which a complainant must discharge before it can accept that a prima facie case of discrimination has been established:

"The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination."

28. In Minaguchi v Wineport Lakeshore Restaurant DEC-E/2002/20, the primary facts which a complainant must prove on the balance of probabilities were identified by the Equality Officer as follows:

• "That s/he is covered by the relevant discriminatory ground(s);
• That s/he has been subjected to specific treatments; and
• That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated."

29. In Southern Health Board v Mitchell, the Labour Court went on to say that: -

"It is only if those primary facts are regarded…as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment."

30. In Melbury Developments v Arturs Valpeters EDA/0917 the Labour Court, whilst examining the circumstances in which the probative burden of proof operates stated that a complainant:

"must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn (…)the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule."

31. As per the Labour Court decision in HSE North Eastern Area v Sheridan EDA0820, whether a complainant has shifted the burden of proof necessitates the following three-step evaluation:

"First, the complainant must prove the primary facts upon which he or she relies in alleging discrimination.

Second, the Court must evaluate those facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

Third, if the complainant fails at stage 1 or 2, he or she cannot succeed. However, if the complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the onus shifts to the respondent to prove, on the balance of probabilities, that there is no discrimination."

Deliberations

32. The burden of proof in a claim of discrimination under the Acts requires a complainant to establish sufficient facts from which discrimination can be inferred. This includes proving, in this case, that the Complainant was a person with a disability within the meaning of the Acts, that he was subject to specific treatment(s) and that this treatment was less favourable than was or would be afforded to a person without a disability, or to a person with a different disability to the Complainant. If the Complainant proves those primary facts on which he relies in alleging discrimination then the Court must evaluate those facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination. Only if the Court concludes that the facts relied on are of sufficient significance does the onus shift to the Respondent to prove, on the balance of probabilities that there is no discrimination.

33. It was accepted by the parties, and the Court, that at the material time the Complainant was an employee and the Respondent his employer, within the definitions set out in the Acts. It was further accepted by the parties and by the Court, supported by documentary and medical evidence, that the Complainant was a person with a disability within the meaning of the Acts.

34. The Complainant provided details of a multiplicity of errors and issues he identified with regard to his pay which arose after he had entered into the long-term illness scheme provided by the Respondent. The Complainant’s account was that the errors occurred during what was a difficult time for him personally when he was already struggling to deal with a serious illness, the prognosis for which was alarming to him. It was the Complainant’s case that because the issues arose only after he entered the long-term illness scheme, and he only entered the scheme because of his disability, that the issues were directly related to his disability and therefore constituted discrimination.

35. The Court accepts the Complainant’s bona fides in referring his claim for discrimination where he very clearly believed that he had been discriminated against. The Court accepts the Complainant’s evidence of the very significant impact on him of dealing with the errors and issues in respect of his pay while on the long-term illness scheme. However, the Court is not satisfied that the Complainant has identified any acts of discrimination by the Respondent. On the Complainant’s own account he was clear that he did not believe anyone targeted him and to the contrary people tried to help him. He was positive in his recollection of the assistance he received from HR in particular.

36. While the effect of the alleged discrimination was clearly outlined by the Complainant no evidence was provided of less favourable treatment by the Respondent on the grounds of disability. The Complainant provided no comparator other than presuming that others on the long-term illness scheme were not affected to the same degree as he was while at the same time acknowledging that he “was not special” so the errors likely did affect others also. The Complainant considered himself, prior to entering the long-term illness scheme, as a comparator. The height of the Complainant’s claim was that because there were a greater number of errors while on the long-term illness scheme compared to the standard payroll and because that scheme only applied to those with disabilities this constituted discrimination on grounds of disability.

37. The Complainant calculated that when he was on the Respondent’s standard payroll the error rate he experienced was 0.089% over the previous nine years, on the basis there was one error with regard to a working from home allowance in 112 payroll runs. The Complainant calculated the error rate while on the long-term illness scheme as 54% with 12 errors across 22 payroll runs. The 12 errors appear to also count the working from home allowance issue.

38. The Complainant did not identify the rate of errors attributable to any other individuals on either standard payroll or the long-term illness scheme. Apart from the fact that the Complainant did not identify a comparator his statistical analysis was problematic in circumstances where one of the errors identified in respect of a working from home allowance had affected him every month from 2014 to May 2023 when it came to light. This meant that every one of the standard payroll runs over nine years contained an error, albeit one not known to the Complainant until 2023. This would result in a payroll error rate of 100% for standard payroll compared to 54% on the long-term illness scheme. Further, a number of the errors identified by the Complainant in respect of the long-term illness scheme appeared to occur on his return to work on exit from the scheme in respect of his return to payroll, over-payments and non-carry over of holidays. The issue with regard to the working from home allowance pre-dated the Complainant’s disability in terms of its origin if not its effect.

39. The Complainant hypothesised, in considering if he was an outlier in terms of his experience, that unless the Respondent could show that twelve other employees experienced the same error rate as him that his experience was statistically exceptional and supportive of his claim of differential treatment based on disability. The Complainant’s considered that in the absence of an alternative explanation his experience supported a claim for discrimination. This does not accord with the Complainant’s obligations in respect of the burden of proof under the Acts. It is for the Complainant to show evidence of discrimination or facts from which an inference of discrimination can be drawn and not for the Respondent to disprove an assertion, based on hypotheses without a factual basis, that the issues which he encountered were discriminatory.

40. The Court does not accept the Complainant’s submission that the burden of proof passed to the Respondent once the Complainant identified the occurrence of the errors and that they affected him as a person with a disability. The Complainant has to establish that the less favourable treatment, which he alleges was the issues with the operation of the long-term illness scheme compared to the operation of standard payroll, was because of his disability. The Complainant was not able to provide evidence which identified that he was less favourably treated than other employees because of his disability. Even if the Complainant, pre-entry to the scheme, was to be his comparator, he did not demonstrate that the issues with the operation of the scheme was because of his disability. The Complainant’s case in summary is that, as a person with a disability, he encountered issues with the long-term illness scheme, which he was only eligible to join because of his illness/disability, which therefore constituted less favourable treatment on the grounds of disability.

41. The issues arising from the application of the long-term illness scheme caused the Complainant significant problems. The effect of those problems was undoubtedly exacerbated because of the difficult situation he was in, financially, emotionally and physically. The Complainant was clear in his evidence that he had not been targeted by anyone in the Respondent organisation in respect of the administration of the long-term illness scheme. He further gave evidence that the errors were not caused by any intentional act on the part of anyone in the Respondent.

42. The Complainant satisfied the Court that he was a person with a disability at the material time. The Complainant did not satisfy the Court that he was subject to any specific treatment. The Complainant experienced issues with the administration of the long-term illness scheme. He accepted that the issues were neither targeted at him nor intentional on the part of the Respondent. While distressing for the Complainant at the material time there was no specific treatment meted out to him on grounds of his disability or otherwise or at all. Even if the Complainant had overcome the hurdle of showing that he had been subjected to specific treatment (which the Court finds he does not) the Complainant has not shown that the alleged treatment was less favourable treatment than a person without a disability or than a person with a different disability.

43. On the Complainant’s own account he accepted that others were likely to have experienced issues in the manner he did and his objective in raising these issues including through grievances, an appeal, and these proceedings was to ensure matters were corrected for other people on the Respondent’s long-term illness scheme in the future. He identified the issues as “systemic” and did not believe his experiences were unique and his concern was that other people in similar situations, with or without his particular disability, could have been similarly treated. He specifically identified his fear that, had he not identified the issues and resolved them, his family would not have been aware of them in the event of his death and same could have been costly for them.

44. While the Court can have sympathy for the Complainant’s experience, the Court is not satisfied that the evidence provided satisfies the Complainant’s burden of proof. The Court considers that the Complainant’s case, as presented, goes no further than to amount to an assertion that because he was a person with a disability who experienced difficulties that this equates to discrimination.

Determination

45. The Court determines that the Complainant has not discharged his burden in establishing a prima facie case of discrimination on the disability ground.

46. The Court affirms the decision of the Adjudication Officer, dated 19 March 2025, bearing the reference numbers ADJ-00051184 and CA-00062691-001.

47. The Court so determines.

	Signed on behalf of the Labour Court
	Niamh McGowan
AR	______________________
08/07/2026	Deputy Chairman

NOTE

Enquiries concerning this Determination should be in writing and addressed to Mr Aidan Ralph, Court Secretary.