ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00061788
Parties:
| Complainant | Respondent |
Parties | Suzanne Rohan | Crenshaw Ltd |
Representatives | Self Represented | Peninsula Business Services |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) | CA-00073734-001 | 24/07/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00073734-003 | 24/07/2025 |
Date of Adjudication Hearing: 02/06/2026
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
This matter was heard by way of remote hearing pursuant to the Civil Law
and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206,
which designates the WRC as a body empowered to hold remote hearings.
In deference to the Supreme Court ruling, Zalewski v Ireland and the
WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The Hearing too place completely in public and the required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of Witnesses was allowed.
Background:
The Complainant is employed as an Administrator and has been on sick leave since August 2022. She alleged she was discriminated against in relation to a promotion under the Employment Equality Act due to a disability and that the Respondent did not comply with the Transfer of Undertakings regulations when the ownership of the Company was transferred from the Owners to other Employees in February 2025 and she was excluded from participating in the transfer. |
Summary of Complainant s Case;
The Complainant commenced employment in 2004 and at that stage, it was a family run Company with a husband and wife as Directors and four employees, to include the Complainant and the Directors daughter. The Complainant contracted covid while pregnant in August 2021 and was on certified leave for the duration of the pregnancy with the support of her employers. The Complainant was due to return to work in October 2022 however in August 2022 she suffered severe nerve damage to her feet which resulted in a long stay in hospital and an ongoing and serious injury. During this period the Complainant engaged meaningfully and often with the two Directors and lines of communication were open at all times. In early January 2024, one of the Directors, Kitty O' Brien, engaged in discussions with the Complainant as to restructuring the Company and the prospect of her and her husband retiring in the future. The Complainant was assured that at all times she would be part of the discussions as to the re-structure and that there would be a position of Director/ Share holder available to her when and if this happened. The Complainant stated that Ms Kitty O Brien advised her that she was seeking advices from an accountant in and around the new formation and would be in further contact when this was established. The Complainant did not hear anything further in more recent times in respect of this re-structure and therefore was dismayed when she reached out to Ms. O Brien in early 2025 to receive a phone call from Kitty's daughter, and former fellow employee, to advise her that the Company had changed hands and Fiona O Brien together with the two other remaining employees were now Directors and Shareholders. The Complainant remains the only employee. The Complainant was completely sidelined in respect of the new Undertaking formed and was not advised or involved in the re-structure. |
Summary of Respondent’s Case:
CA-00073734-003 Transfer of undertakings The Complainant has submitted a claim under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) alleging that the transferor did not advise me in relation to the transfer. The Respondent would submit that this claim is fundamentally flawed as there has been no transfer of an undertaking under the regulations. The Respondent submits that there was a change in the shareholding and management of the Respondent in early 2025 but the employer of the Respondent has remained the Respondent. The Complainant appears to have submitted this complaint in the belief that she should have been consulted regarding the transferof the ownership of the Respondent from Kitty O’Brien and Tom O’Brien to Fiona O’Brien, Lisa Morrison and Seamus Murphy in early 2025. It is unclear if there was a miscommunication regarding this from the Respondent however the Respondent submits that Crenshaw Limited has continued to employ the Complainant since 2004 and there has never been any transfer of undertaking. CA-00073734-003 Discrimination claim The Complainant has submitted a claim under section 77 of the Employment Equality Act 1998 alleging that she was discriminated against by the Respondent on the basis of disability in relation to promotion and her terms and conditions of employment. The Respondent wholly denies this claim. The Respondent would refer to section 6 of the Employment Equality Act which states as follows: 6.—F14[(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, The Labour Court clarified the burden of proof in respect of discrimination under the Employment Equality Acts in Mitchell -v- Southern Health Board [2001] 12 E.L.R. 201 follows: “It is necessary, however, to consider the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The first requirement of Article 4 of the Directive 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 a presumption of unlawful discrimination.” It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the Respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.” It is submitted that Mitchell -v- Southern Health Board, albeit dealt with discrimination on the basis of sex, is instructive in respect of the burden of proof in all discrimination cases under the Employment Equality Acts. It is submitted that discrimination on any basis is one of the most serious of claims to level against an employer, thus the evidential burden of proof is high. It was held in Melbury Developments v Arthur Velpetters. “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. In order to demonstrate that the Claimant had received less favourable treatment, and that the less favourable treatment arose from one of the protected grounds, the Claimant must first establish a prima facie case of discrimination as held by the Labour Court in Rotunda Hospital -v- Gleeson DDE003/2000: ‘‘Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred’’. It is submitted that the Complainant has to not only to establish the primary fact upon which he or she will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination. We refer to the case of Cork City Council -v- McCarthy EDA21 2008 where the Labour Court recommended that: ‘‘The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain in particular facts or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’’ The Respondent would in particular refer to Graham Anthony & Company Limited v Mary Margetts EDA. Which sets out the requirement that an evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court in this case when it stated: “The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred." In the present instance the Respondent notes that the Complainant has been on leave since 2021, between various periods of sick leave and maternity leave. The Respondent is aware that the Complainant has alleged that she suffered from nerve damage. The Respondent wishes to make clear it is aware of this but has not received medical certification of this. The Complainant has outlined that they feel that they were discriminated against in relation to promotion and conditions of employment. This appears to relate to the failure of the previous shareholders to provide her with a stake in the Respondent when they transferred the business to the new shareholders in 2025. The Complainant appears to allege that she was excluded from the discussions regarding the reorganisation of the Respondent and was subsequently excluded from management. In this regard it is somewhat unclear what the Complainant refers to as discrimination regarding her terms and conditions of employment or promotion.. The letter which was prepared on the Complainant ’s behalf, which is purported to be dated the 14th March 2025, states the following: At all times our client was assured that she would be part of the discussions and would hold a position within the company as Director/Shareholder. Our client was advised that the company was taking advice from an accountant as to the tax implication of such a restructure and that they would revert to her once they had established a clear timeline and plan. As such it appears that the Complainant believed that she had been promised a shareholding in the respondent. The Complainant further alleges that she was excluded from the restructure due to her disability and this would represent grounds for ‘redress pursuant to the Unfair Dismissals Act and the Employment Equality Act.’ In this regard the Respondent would note that it cannot comment on the above as all of the above was a decision of the shareholders of the Respondent and not the respondent. It is a well established point of law that a company such as the Respondent is a legal entity distinct from its shareholders. In the present instance the Complainant has raised issues regarding the conduct of shareholders in the business transferring their stake to individuals of their choosing. The Respondent cannot comment on this as this was the decision of shareholders acting in their capacity as shareholders. The Respondent of course acknowledges that said shareholders were the directors of the Respondent at that time however in this regard they were acting as private individuals disposing of their property, namely the shares of the respondent, as they saw fit. As such the Respondent had no power to interfere with this transaction even if it was deemed to have been discriminatory. Furthermore the Complainant has referred to the fact that she was discriminated against on the basis of promotion. In this the regard the Respondent suspects that the Complainant is referring to the fact that the other employees of the respondent, who for the avoidance of doubt were appointed shareholders of the respondent, were appointed directors of the respondent. In this regards the Respondent submits that these employees were appointed as directors of the Respondent in their capacity as shareholder of the respondent. The Respondent notes that the Complainant did not return from sick leave following the change over in management of the Respondent and has continued to send medical certificates. The Respondent notes that it believes that the Complainant is still employed by them and has no evidence to the contrary. The Respondent wishes to make clear that it no point discriminated against the Complainant with regards to her terms and conditions of employment or promotion. The Respondent submits that the present claims should be dismissed as the Complainant has not been discriminated against by the respondent. The Complainant appears to be alleging that she has been discriminated against by the former shareholders of the Respondent but this is not a matter for employment law.
|
Findings and Conclusions:
The Complainant submitted two claims, one under the Transfer of Undertaking Regulations and the other under the Employment Equality Act. At the Hearing the Complainant was asked to set out her evidence under each Act and following this she was advised by the Adjudicator, based on the Respondents written preliminary objections and as she was a Lay Litigant, that the complaints must be covered by the Act to enable him to issue a Decision on the substantive complaints. The Complainant stated she was advised to submit her complaints under these two Acts. The Complainant stated that her claims were because she was treated unfairly compared to other employees when the shares were transferred to the new shareholders. The Respondent Representative stated that the complaints were related to the transfer of shares and not a transfer of Undertaking and the complaint under the Employment Equality Act had nothing to do with the Complainants disability or promotion and related to the transfer of shares and that both complaints were invalid. Section 4 of S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 provides in relevant part as follows:
The Complainant provided no evidence that the ownership of a shareholding of the company was an existing term of her contract of employment. Even it if where, I conclude from the evidence provided that no transfer of undertaking has taken place but instead a private transfer of shares took place so therefore the complaint under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003 is not covered under the Act and therefore is not well founded. The following is the relevant section of the Employment Equality Act; 6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as ‘‘the discriminatory grounds’’), one person is treated less favourably than another is, has been or would be treated. (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 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’’), It was accepted that the Complainant was on long term medical leave due to a damage to a nerve. No medical sick certificates had been provided to the Respondent for a number of years and no Medical Certificate was provided to the Hearing showing the Complainant had a Disability. No evidence was provided to the Hearing that not including the Complainant in the transactions in buying shares in the Company was due to her disability. I conclude that the complaint, as put forward, that the Complainant was denied a promotion due to her disability, was in effect that the Complainant was entitled to be a shareholder or Director of the Company, and there was no evidence to suggest she was excluded from this transaction due to her disability and therefore she has not established a prima facia case and the complaint under the Employment Equality Act is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. I decide that the Complaint under the Protection of Employees (Transfer of Undertakings) Act 2003 is not well founded. CA-00073734-001 Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. I decide that the Complainant was not discriminated against and the complaint is not well founded. CA-00073734-003
|
Dated: 9th June 2026
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
No prima facia case |
CORRECTION ORDER
ISSUED PURSUANT TO SECTION 88 OF THE EMPLOYMENT EQUALITY ACT 1998 and
SECTION 41 OF THE WORKPLACE RELATIONS ACT 2015
This Order corrects the original Decision ADJ-00061788 issued on 9/6/2026 and should be read in conjunction with that Decision.
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) | CA-00073734-001 | 24/07/2025 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00073734-003 | 24/07/2025 |
Date of Adjudication Hearing: 02/06/2026
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
This matter was heard by way of remote hearing pursuant to the Civil Law
and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206,
which designates the WRC as a body empowered to hold remote hearings.
In deference to the Supreme Court ruling, Zalewski v Ireland and the
WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The Hearing too place completely in public and the required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of Witnesses was allowed.
Background:
The Complainant is employed as an Administrator and has been on sick leave since August 2022. She alleged she was discriminated against in relation to a promotion under the Employment Equality Act due to a disability and that the Respondent did not comply with the Transfer of Undertakings regulations when the ownership of the Company was transferred from the Owners to other Employees in February 2025 and she was excluded from participating in the transfer. (This Order corrects a wording error in the Decision Section of the Original Decision). |
Summary of Complainant s Case;
The Complainant commenced employment in 2004 and at that stage, it was a family run Company with a husband and wife as Directors and four employees, to include the Complainant and the Directors daughter. The Complainant contracted covid while pregnant in August 2021 and was on certified leave for the duration of the pregnancy with the support of her employers. The Complainant was due to return to work in October 2022 however in August 2022 she suffered severe nerve damage to her feet which resulted in a long stay in hospital and an ongoing and serious injury. During this period the Complainant engaged meaningfully and often with the two Directors and lines of communication were open at all times. In early January 2024, one of the Directors, Kitty O' Brien, engaged in discussions with the Complainant as to restructuring the Company and the prospect of her and her husband retiring in the future. The Complainant was assured that at all times she would be part of the discussions as to the re-structure and that there would be a position of Director/ Share holder available to her when and if this happened. The Complainant stated that Ms Kitty O Brien advised her that she was seeking advices from an accountant in and around the new formation and would be in further contact when this was established. The Complainant did not hear anything further in more recent times in respect of this re-structure and therefore was dismayed when she reached out to Ms. O Brien in early 2025 to receive a phone call from Kitty's daughter, and former fellow employee, to advise her that the Company had changed hands and Fiona O Brien together with the two other remaining employees were now Directors and Shareholders. The Complainant remains the only employee. The Complainant was completely sidelined in respect of the new Undertaking formed and was not advised or involved in the re-structure. |
Summary of Respondent’s Case:
CA-00073734-003 Transfer of undertakings The Complainant has submitted a claim under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) alleging that the transferor did not advise me in relation to the transfer. The Respondent would submit that this claim is fundamentally flawed as there has been no transfer of an undertaking under the regulations. The Respondent submits that there was a change in the shareholding and management of the Respondent in early 2025 but the employer of the Respondent has remained the Respondent. The Complainant appears to have submitted this complaint in the belief that she should have been consulted regarding the transferof the ownership of the Respondent from Kitty O’Brien and Tom O’Brien to Fiona O’Brien, Lisa Morrison and Seamus Murphy in early 2025. It is unclear if there was a miscommunication regarding this from the Respondent however the Respondent submits that Crenshaw Limited has continued to employ the Complainant since 2004 and there has never been any transfer of undertaking. CA-00073734-003 Discrimination claim The Complainant has submitted a claim under section 77 of the Employment Equality Act 1998 alleging that she was discriminated against by the Respondent on the basis of disability in relation to promotion and her terms and conditions of employment. The Respondent wholly denies this claim. The Respondent would refer to section 6 of the Employment Equality Act which states as follows: 6.—F14[(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, The Labour Court clarified the burden of proof in respect of discrimination under the Employment Equality Acts in Mitchell -v- Southern Health Board [2001] 12 E.L.R. 201 follows: “It is necessary, however, to consider the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out. The first requirement of Article 4 of the Directive 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 a presumption of unlawful discrimination.” It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. Applied to the present case, this approach means that the appellant must first prove as a fact one or more of the assertions on which her complaint of discrimination is based. A prima facie case of discrimination can only arise if the appellant succeeds in discharging that evidential burden. If she does, the Respondent must prove that she was not discriminated against on grounds of her sex. If she does not, her case cannot succeed.” It is submitted that Mitchell -v- Southern Health Board, albeit dealt with discrimination on the basis of sex, is instructive in respect of the burden of proof in all discrimination cases under the Employment Equality Acts. It is submitted that discrimination on any basis is one of the most serious of claims to level against an employer, thus the evidential burden of proof is high. It was held in Melbury Developments v Arthur Velpetters. “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. In order to demonstrate that the Claimant had received less favourable treatment, and that the less favourable treatment arose from one of the protected grounds, the Claimant must first establish a prima facie case of discrimination as held by the Labour Court in Rotunda Hospital -v- Gleeson DDE003/2000: ‘‘Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred’’. It is submitted that the Complainant has to not only to establish the primary fact upon which he or she will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination. We refer to the case of Cork City Council -v- McCarthy EDA21 2008 where the Labour Court recommended that: ‘‘The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain in particular facts or a set of facts which are proved in evidence. At the initial stage the Complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.’’ The Respondent would in particular refer to Graham Anthony & Company Limited v Mary Margetts EDA. Which sets out the requirement that an evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court in this case when it stated: “The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred." In the present instance the Respondent notes that the Complainant has been on leave since 2021, between various periods of sick leave and maternity leave. The Respondent is aware that the Complainant has alleged that she suffered from nerve damage. The Respondent wishes to make clear it is aware of this but has not received medical certification of this. The Complainant has outlined that they feel that they were discriminated against in relation to promotion and conditions of employment. This appears to relate to the failure of the previous shareholders to provide her with a stake in the Respondent when they transferred the business to the new shareholders in 2025. The Complainant appears to allege that she was excluded from the discussions regarding the reorganisation of the Respondent and was subsequently excluded from management. In this regard it is somewhat unclear what the Complainant refers to as discrimination regarding her terms and conditions of employment or promotion.. The letter which was prepared on the Complainant ’s behalf, which is purported to be dated the 14th March 2025, states the following: At all times our client was assured that she would be part of the discussions and would hold a position within the company as Director/Shareholder. Our client was advised that the company was taking advice from an accountant as to the tax implication of such a restructure and that they would revert to her once they had established a clear timeline and plan. As such it appears that the Complainant believed that she had been promised a shareholding in the respondent. The Complainant further alleges that she was excluded from the restructure due to her disability and this would represent grounds for ‘redress pursuant to the Unfair Dismissals Act and the Employment Equality Act.’ In this regard the Respondent would note that it cannot comment on the above as all of the above was a decision of the shareholders of the Respondent and not the respondent. It is a well established point of law that a company such as the Respondent is a legal entity distinct from its shareholders. In the present instance the Complainant has raised issues regarding the conduct of shareholders in the business transferring their stake to individuals of their choosing. The Respondent cannot comment on this as this was the decision of shareholders acting in their capacity as shareholders. The Respondent of course acknowledges that said shareholders were the directors of the Respondent at that time however in this regard they were acting as private individuals disposing of their property, namely the shares of the respondent, as they saw fit. As such the Respondent had no power to interfere with this transaction even if it was deemed to have been discriminatory. Furthermore the Complainant has referred to the fact that she was discriminated against on the basis of promotion. In this the regard the Respondent suspects that the Complainant is referring to the fact that the other employees of the respondent, who for the avoidance of doubt were appointed shareholders of the respondent, were appointed directors of the respondent. In this regards the Respondent submits that these employees were appointed as directors of the Respondent in their capacity as shareholder of the respondent. The Respondent notes that the Complainant did not return from sick leave following the change over in management of the Respondent and has continued to send medical certificates. The Respondent notes that it believes that the Complainant is still employed by them and has no evidence to the contrary. The Respondent wishes to make clear that it no point discriminated against the Complainant with regards to her terms and conditions of employment or promotion. The Respondent submits that the present claims should be dismissed as the Complainant has not been discriminated against by the respondent. The Complainant appears to be alleging that she has been discriminated against by the former shareholders of the Respondent but this is not a matter for employment law.
|
Findings and Conclusions:
The Complainant submitted two claims, one under the Transfer of Undertaking Regulations and the other under the Employment Equality Act. At the Hearing the Complainant was asked to set out her evidence under each Act and following this she was advised by the Adjudicator, based on the Respondents written preliminary objections and as she was a Lay Litigant, that the complaints must be covered by the Act to enable him to issue a Decision on the substantive complaints. The Complainant stated she was advised to submit her complaints under these two Acts. The Complainant stated that her claims were because she was treated unfairly compared to other employees when the shares were transferred to the new shareholders. The Respondent Representative stated that the complaints were related to the transfer of shares and not a transfer of Undertaking and the complaint under the Employment Equality Act had nothing to do with the Complainants disability or promotion and related to the transfer of shares and that both complaints were invalid. Section 4 of S.I. No. 131/2003 - European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 provides in relevant part as follows:
The Complainant provided no evidence that the ownership of a shareholding of the company was an existing term of her contract of employment. Even it if where, I conclude from the evidence provided that no transfer of undertaking has taken place but instead a private transfer of shares took place so therefore the complaint under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003 is not covered under the Act and therefore is not well founded. The following is the relevant section of the Employment Equality Act; 6.—(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as ‘‘the discriminatory grounds’’), one person is treated less favourably than another is, has been or would be treated. (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 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’’), It was accepted that the Complainant was on long term medical leave due to a damage to a nerve. Medical sick certificates had been provided to the Respondent for a number of years and no Medical Certificate was provided to the Hearing showing the Complainant had a Disability. No evidence was provided to the Hearing that not including the Complainant in the transactions in buying shares in the Company was due to her disability. I conclude that the complaint, as put forward, that the Complainant was denied a promotion due to her disability, was in effect that the Complainant was entitled to be a shareholder or Director of the Company, and there was no evidence to suggest she was excluded from this transaction due to her disability and therefore she has not established a prima facia case and the complaint under the Employment Equality Act is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. I decide that the Complaint under the Protection of Employees (Transfer of Undertakings) Act 2003 is not well founded. CA-00073734-001 Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. I decide that the Complainant was not discriminated against and the complaint is not well founded. CA-00073734-003
|
Dated: 26 06 2026
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
No prima facia case |