EDA2635

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00054904 (CA-00066940-001)

BACKGROUND:

The employee appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 22 April 2025. A Labour Court hearing took place on 21 July 2026.              

The following is the Determination of the Court.

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DETERMINATION:

1. Background

This is an appeal by Abul Kashem Golam Shahriar of a Decision of an Adjudication Officer (number ADJ-00054904, CA-00066940-001, dated 22 April 2025) made under the Employment Equality Act, 1998 – 2015 (“The Act”) in relation to a complaint against Railway Refreshment Rooms Ltd. The Adjudication Officer found that his complaint was not well founded. A hearing of the Labour Court was held in Dublin on 21 July 2026.

For ease, the parties are referred to in this Determination as they were cited at first instance. Hence, Abul Kashem Golam Shahriar is referred to as “the Complainant” and Railway Refreshment Rooms Ltd as “the Respondent”.

2. Preliminary Matter

A preliminary matter was raised by the Respondent in relation to the Court’s jurisdiction to hear the complaint. Rule 34 of the Labour Court Rules provides that: -

“The Court may, in its discretion, give a preliminary ruling on any aspect of the case where it is satisfied that time and expense may be saved by the giving of such a ruling and/or where it has the potential to be determinative of the case”.

By agreement with the parties, the Court proposed that it would hear and decide the preliminary matter of time limits in the first instance. The Court proceeded on that basis and heard submissions from both parties on the preliminary matter.

3. Preliminary Matter - Summary of the Respondent’s Position

The Complainant commenced employment on 25 September 2021. His employment ceased less than one year later on 3 September 2022.  The Complainant lodged his complaint to the WRC on 24 October 2024.

In his WRC complaint form, the Complainant alleges that he was discriminated against by virtue of his former employer completing a reference form that the Complainant deemed to be inadequate. At the time of the alleged act of discrimination, the Complainant was not an employee or prospective employee of the Respondent. The Complainant does not have standing to succeed in his complaint. Furthermore, the Complainant has attempted to ventilate additional claims in his appeal submissions which are not properly before the Court. Finally, all complaints are statute as they are manifestly out of time. No application for an extension of time was made at first instance.

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1. Preliminary Matter - Summary of the Complainant’s Position

The Complainant was subject to a continuum of discriminatory acts by the Respondent on the Race Ground, culminating in a damaging and incomplete reference that directly led to the loss of a job offer in August 2024.

The Complainant applied for re-employment with the Respondent in November 2023 but received no reply to his application. As no reply was received, the Complainant was, and remains, a prospective employee of the Respondent for the purposes of the Act. In August 2024, the Complainant applied for a role with a third party and sought a reference from the Respondent.  The Respondent did not complete one section of the documentation, and the third party subsequently withdrew the job offer. The complaint falls within the time limits set down in the Act, as the Complainant was a prospective employee at the relevant time.

2. Relevant Law

Section 2 of the Act addresses matters of interpretation and provides, in relevant part, as follows: -

“contract of employment” means, subject to subsection (3)—

(a) a contract of service or apprenticeship, or

(b) any other contract whereby an individual agrees with a person carrying on the business of an employment agency, within the meaning of the Employment Agency Act, 1971, to do or perform personally any work or service 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;

“employee”, subject to subsection (3), means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

“employer”, subject to subsection (3), means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

Section 8(1) of the Act prohibits discrimination against an employee or prospective employee in relation: -

(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,

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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 8(5) of the Act addresses access to employment as follows: -

“Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or

(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.”

Section 8(6) of the Act addresses discrimination in relation to conditions of employment as follows: -

“Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

Victimisation is defined in section 74(2) of the Acts 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,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

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(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

The relevant statutory time limits are set down at Section 77(5) of the Act, which states as follows:

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

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

1. Deliberations

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. Once these facts are proved, and if the Court regards them as being of sufficient significance to raise an inference of discrimination, then the onus of proving the contrary shifts to the Respondent. If a Complainant does not establish primary facts upon which they rely or if those facts are insufficient to raise an inference of discrimination, then the claim cannot succeed.

It is for the Complainant in the first instant to establish the primary facts that occurred within the relevant statutory time limits specified at s.77(5)(a) of the Act, which could lead to an inference that discrimination has occurred, before the burden of proof shifts to the Respondent. The Complainant in this case contends that he was subject to discriminatory treatment on the Race Ground when the Respondent provided him with an incomplete reference in or around 1 August 2024. The Complainant contends that the reference provided by the Respondent constituted direct and indirect discrimination on the Race Ground and victimisation. 

Section 8 of the Act prohibits discriminatory treatment by an employer against an “employee” or “prospective

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employee”.

In this case the Complainant’s employment with the Respondent ended on 3 September 2022. His complaint was referred to the WRC on 24 October 2024, more than two years later. The Complainant was no longer an employee of the Respondent at the relevant time when he lodged his complaint. No application to extend the statutory timeframe was made at the WRC. Even if that was the case, and if the Court had found “reasonable cause” to extend the statutory timeframe, the complaint relied upon by the Complainant to ground his complaints fall outside the maximum available 12-month time limit. Accordingly, the Court finds that any complaint in connection with the Complainant’s employment with the Respondent was lodged outside of the statutory timeframes for referral of claims under the Acts.

The Complainant further contends that he has standing to progress his complaint under the Act as he was, and remains, a “prospective employee” of the Respondent, having lodged an application for re-employment with the Respondent in November 2023. That matter is disputed by the Respondent. No application to extend the statutory timeframe was made by the Complainant. Accordingly, the Court further finds that any complaint in connection with the Complainant’s status as a “prospective employee” of the Respondent was lodged outside of the statutory timeframes for referral of claims under the Acts.

Finally, the Complainant contends that he can rely on his status as a “prospective employee” to ground his complaint that he was subject to discriminatory treatment in relation to the provision of a reference by the Respondent in response to a job offer made to the Complainant by a third party. The Court finds that complaint to be misconceived, as the Complainant was not a “prospective employee” within the meaning of the Act in relation to the matter complained of against the Respondent.

The Complainant further contends that he was subject to victimisation under the Act. The Complainant did not make out a case that he was subject to victimisation by the Respondent in August 2024. No facts were presented to the Court to support the assertion that the Respondent sought to penalise the Complainant for previously making a complaint under the Act. 

For the reason set out above, the Court is satisfied that it has no jurisdiction to hear the substantive complaints of alleged discrimination, indirect discrimination or victimisation.  In these circumstances, the Court cannot proceed to hear the substantive matter.

1. Determination

The Court determines that it has no jurisdiction to hear the appeal. Accordingly, the Court affirms the Decision of the

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Adjudication Officer.

The Court so Determines.

	Signed on behalf of the Labour Court
	Katie Connolly
AR	______________________
23/07/2026	Deputy Chairman

NOTE

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

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