Complainant

Respondent

Anonymised Parties

Junior Project Manager

Financial Services Provider

Representatives

  Self-Represented

Keevagh Heverin IBEC Mid-West & Kerry

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-00062026-001

06/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00062026-002

06/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00062026-003

06/03/2024

The Complainant is an Irish citizen of Pakistani heritage and was employed by the Respondent as a Junior IT Project Manager from 29 May 2023 until 23 January 2024. Her employment was terminated during probation.

The Complainant submits two claims under the Employment Equality Acts 1998-2015 (“EEA”) :

CA-00062026-001: Discriminatory dismissal on the ground of race.

CA-00062026-002: Discriminatory dismissal on the ground of disability, and,

CA-00062026-003: Penalisation for having made protected disclosures under Schedule 2 of the Protected Disclosures Act 2014 (“PDA”)

The Respondent denies all claims and submits that the complainant’s employment was terminated solely because she did not meet the required performance standard during probation.

The complainant represented herself. The respondent was represented by Ms Keevagh Heverin of IBEC who called four witnesses: Ms A an HR Business Partner, Mr B, the Complainant’s line manager, Ms C a second HR manager, and Ms D, the HR Director.

The Complainant stated that she commenced employment around the end of May or early June 2023 as a “Junior IT Project Manager on probation. She confirmed that she held a degree in Business Information Systems. She explained that her work involved interacting internally with team members and networking specialists. She described June, July and September 2023 as positive months.

She said she had weekly calls with her manager, Mr B, and that “everything was good.” She stated that she went on one week’s holiday in October and returned on 18 October 2023. According to her evidence, it was after this return that matters changed.

The Complainant stated that when she returned from leave, Mr B told her that unnamed people had complained about her. She said: “He said unnamed people, unnamed scenarios… and he made me cry on that 10am call”. She said she asked for names and specifics but was not given them.

Race Discrimination Allegation

The Complainant confirmed she is of Pakistani heritage. She gave evidence that in September 2023, during a conversation upstairs with Mr B, she mentioned she was seeing someone from Afghanistan. She said “He just flipped, and he was just like, oh, why don’t you marry an Irish guy? You people tend to stick to your kind.” She said she did not make a grievance of it at the time and just ignored it.  She acknowledged that she had not included this remark in her original complaint form and earlier submissions.

She stated she believed Mr B’s behaviour changed after this incident. She gave evidence that the basis of her race claim was based on three Irish colleagues whom she claimed did not go through” …the same treatment as I would have had”. She acknowledged that she had no direct evidence of discrimination.

The Complainant said she believed her performance was “very good”. She said that “I’m not saying that I’m brilliant… but it’s not enough to fire someone.” When confronted in cross-examination with documented probation review meetings (September, 3 November, 20 November), she accepted the meetings occurred but disputed their fairness. She acknowledged that part of her claim was no there was no documentation of the probation process.

Under cross-examination, she was asked where in her emails she had raised race as a factor. She accepted she did not state it “word by word,” but said she highlighted differential treatment.

Ms Heverin exhibited documentation, which the Complainant accepted she had previously sight of, where it was stated by management that her performance was “not at the required level.” She responded that she did not recall being told that at the time.

She was shown a passage in the November probation documentation which included her own recorded statement, which stated: “Sometimes you’re in a company and it’s not suited to you… if I don’t pass probation… I’m okay to resign if it comes to that.” She did not dispute that those words appeared in the documentation which she previously had sight of.

Disability Discrimination:

The Complainant stated that she became “extremely traumatised” as a result of her dismissal She said: “I was very traumatised. I couldn’t get out of bed. I couldn’t eat.” The Complainant exhibited a report from her GP, dated a week before the hearing where her GP said she might have PTSD. The Complainant said that this was the disability condition she was relying on. When asked directly whether she declared PTSD to her employer, she said: “No.”

When asked whether she had medical certification at the time of dismissal confirming PTSD, she was directed to a medical report dated February 2026. The Complainant acknowledged the report referred to PTSD arising after dismissal. She said that she had repeatedly informed HR near the end of her probationary period that she was very ill but accepted that she refused to go for occupational health assessment by the Respondent when requested to do so.

Protected Disclosures

The Complainant stated that she raised concerns with HR in relation to her own treatment under the following headings:

• “Misrepresentation of probation framework”
• “Inconsistent application probation procedure”
• “Abuse of managerial authority”
• “Risk of unfair dismissal”

She stated she informed HR she would escalate matters to the CEO and Chairperson but that she was dismissed shortly thereafter.

When I asked the Complainant  whether she was familiar with section 5 of the Protected Disclosures Act (“PDA”) and the concept of “relevant wrongdoing,” she said she did not fully understand it but believed her disclosures qualified.

In a closing statement the Complainant said her life has been impacted and she felt scared. In her closing remarks, she said: “They completely traumatised me… My body shakes… I collapse… I was a vulnerable, easy target.” She described being taken by ambulance and said her family had been affected.

Evidence of Ms A:

The witness explained that she was part of the HR function and became involved in the Complainant’s probation process after issues had arisen and particularly when Ms C was unavailable.

The witness described the probation framework within the organisation. She stated that probation with the Respondent is a six-month process, with the focus being “very much on supporting re-joiners in settling into the organisation and into the role.” She explained that HR’s role is to remind managers of the probation process, check in with them, and ensure that appropriate reviews are conducted.

The witness gave evidence that in 2022 there had been developments at EU level that led the company to reflect on its probation documentation. She explained that the UK colleagues already had probation forms in place, and these were adapted and rolled out within the organisation in March 2023. She stated that: “The HR business partners would communicate it down to all of the managers and then it would have been reinforced when line managers had a need for rejoining the process.”

She emphasised that the underlying probation process did not change, but the documentation was standardised. She further stated that a probation policy was approved by the policy committee in November, and that one change concerned the extension of probation beyond six months only being in the interest of the employee.

When asked directly whether the Complainant was uniquely subjected to a different process, the witness stated that the updated forms were rolled out organisation-wide, amongst approximately 50 different nationalities, and that anyone on probation during the transition period would have been subject to the updated documentation.

The witness confirmed that the final probation review meeting took place on 20 November 2023. She explained that the intention had been to hold an outcome meeting on 22 November 2023. She stated that Ms C had originally planned to attend the outcome meeting but was on leave, and she (the witness) was asked to step in.

The witness testified that the Complainant declined to attend the outcome meeting. She said that the Complainant emailed indicating she would not attend but that alternative dates were offered.  The Witness said that the Complainant subsequently rang in sick on the date offered. She also confirmed that occupational health appointments were arranged after she told the witness that she was very ill  but the Complainant never attended the appointment The witness was asked whether the Complainant had ever declared PTSD or any disability during employment and answered in the negative.

The witness confirmed that when the Complainant raised allegations of ‘gaslighting’ and unfair treatment, the grievance procedure was provided. The witness confirmed that the Complainant indicated in writing that she would not pursue a formal grievance (exhibited). She stated that the appropriate procedure was followed and that the company encouraged use of the grievance mechanism.

Cross-Examination by the Complainant

The Complainant asked:

“Why didn’t you respond back to my emails when I kept saying either undocumented, unapproved… that I have to follow through?”. The witness responded that she had shared the probation policy and explained the changes. She said that her interpretation of the Complainant’s question at the time was that it related to policy rather than forms specifically. She stated: “My interpretation of the question was around probation policy… not around the forms.” The Complainant put it to her that had another employee raised similar questions, they would have been treated differently. The witness denied this. She reiterated that everyone in the organisation undergoes probation and that how issues are documented depends on whether concerns arise.

The Complainant pressed the issue of differential treatment and asked why she was the only one being subjected to the new forms. The witness clarified that within that specific team she may have been the only person at that stage of probation, but that across the organisation others were subject to the same process. I asked the witness to clarify whether the Complainant had been informed that probation was at risk prior to termination. The witness confirmed that this had been communicated. The witness also stated that race and disability were never raised at problems by the Complainant during the probation process.

Evidence of Mr B:

The witness stated that at the time of the Complainant’s employment he was Head of Project Management and had approximately 13 years’ experience in that function. His responsibilities included management of the project management team.

He described the role of Junior Project Manager as involving planning and coordination of projects, interaction with internal and external stakeholders, and delivery within time, cost and scope constraints. He explained that as a junior project manager, the Complainant would initially receive support from senior project managers, with the expectation that after a period of ‘onboarding’ she would be capable of operating independently.

The witness gave detailed evidence regarding the probation period. He stated that the objective of probation was for employees to pass and succeed. He described extensive training supports, including: “approximately 20 hours of training videos and another 20 hours of actual project management tool set training.”

He stated that he met with the Complainant weekly, if not more frequently, to discuss performance and provide feedback. He said performance concerns arose early. He identified concerns regarding:

• Attention to detail
• Communication
• Focus
• Distraction of colleagues

He said that from the first week he identified issues but sought to support the Complainant. He confirmed that a formal probation meeting took place on 14 September 2023. When asked whether feedback was given at that stage, he stated that performance issues were outlined.

The witness referred to a subsequent probation review meeting on 3 November 2023. At that meeting, he said the Complainant was informed that her performance was not at the required level and that probation was at risk. He confirmed that at the final probation review meeting on 20 November 2023 he concluded that although there had been some improvement, she was still not meeting the required standard for independent project management.

The witness stated: “She would need constant support from senior project managers for a minimal length of time and we weren’t in a position to be able to do that.” The witness confirmed that following that meeting, the decision was formed that she had not passed probation.

The witness gave specific evidence about an incident in September 2023. He stated that on a Friday he could not contact the Complainant, and she appeared offline on ‘Teams’ from lunchtime onwards. The following Monday he contacted her. He testified that she initially attributed her absence to a technical issue with the computer and IT system. He said he advised that if there was a technical issue it needed to be logged. He testified that after approximately ten minutes of discussion, she admitted she had not been truthful. The witness stated: “She said, I’m being dishonest.” He said that she then indicated she had fallen asleep and had not worked. The witness described explaining the importance of trust to the Complainant. He stated he told her: “I said, we are a fintech company… we’re dealing with regulation… I can’t have a situation where a PM on my team has been dishonest.” He said this incident damaged trust and was considered in the overall assessment of probation.

The witness was asked directly about the allegation that he made a remark to the Complainant along the lines of “why don’t you marry an Irish guy” and “you people stick to your own kind.” He denied this ever happened. He was asked whether race was ever raised during probation. He responded that it was not. He confirmed that at no stage did the Complainant allege discrimination during the probation meetings. 

The Complainant said she did not wish to cross-examine the witness because it was so long and her memory was hazy on the matter. I asked the witness whether the Complainant was given an opportunity to respond before the termination decision was made. The witness stated that the 20 November meeting allowed her to respond and that the outcome meeting scheduled for 22 November was intended to communicate the final decision. He confirmed that the Complainant declined to attend that meeting.

Evidence of Ms C.

Ms C was the HR Business Partner assigned to the complainant’s business unit. Her involvement arose during the latter part of the complainant’s probation period. She confirmed that she attended the final probation review meeting on 20 November 2023. She described the purpose of that meeting as follows: “The purpose of that meeting was to look at the probation period as a whole and give (the Complainant) the opportunity to speak to the concerns that we had.”

She stated that the concerns raised during probation had been documented and discussed previously, and that the complainant was given an opportunity to respond at the meeting. When asked directly whether the complainant had the opportunity to give her point of view, the witness replied: “Yes, we talked through all the concerns we had. We gave her full opportunity to provide her point of view and any feedback that she had.”

The witness confirmed that following the review meeting of 20 November, an outcome meeting was scheduled for 22 November 2023. She explained that the two-day gap between the review meeting and the outcome meeting was to allow management to reflect on the probation as a whole. She said: “To give us the opportunity to reflect on everything to that point — so the entire probationary period.” She gave evidence that the Complainant did not attend that outcome meeting. According to witness the Complainant was invited to it and she emailed on the 22nd of November, shortly before the meeting was due, to say that she would not attend because the witness had enough evidence to terminate her within that meeting. The witness confirmed that prior probation review meetings had made clear to the Complainant that her probation performance put her at risk of termination of contract. When asked whether the Complainant had been told termination was a potential outcome, she confirmed that this was clear in the documentation and in prior discussions.

Cross-Examination of Ms C by the Complainant.

The Complainant had alleged that the witness manipulated and victimised her during the probation process. When asked about these allegations, the witness denied them. She stated that when the complainant raised concerns about treatment, the grievance procedure was provided to her. She confirmed that the grievance procedure had been shared with the Complainant and that the Complainant later stated in writing that she would not be pursuing a formal grievance. When asked directly whether the Complainant had alleged’ gaslighting’ or manipulation during probation, Ms Peevers confirmed that allegations were raised after the 20 November meeting, and that the appropriate procedure was offered.

The Complainant also questioned the witness about the introduction of new probation forms in March 2023. She put to Ms C that she had repeatedly asked why she alone was being subjected to what she described as an “undocumented” or “unapproved” process”. She said that did not provide a clear explanation at the time. The witness replied that she had explained the probation policy and that the forms were part of practice following changes. She said that she had continuously engaged with the Complainant by email and had offered calls to clarify any misunderstandings. She stated: “I did continuously email you to answer your questions and offer you a call to discuss.” She denied that the Complainant was uniquely subjected to a different process.

The Complainant suggested that she was treated differently from Irish colleagues and implied that had another employee raised similar concerns they would have been treated differently. The witness denied this and reiterated that the probation process applied across the organisation, amongst all the different nationalities, and that documentation varied depending on performance issues identified. The witness confirmed that within the Complainant’s team she may have been the only employee at that precise probation stage, but she denied that this was linked to race or any protected characteristic.

Evidence of Ms. D:

The witness said she held the position of HR Director within the organisation and had oversight of HR processes, including grievance handling and governance matters. The witness stated that she became aware of issues concerning the Complainant following the probation review meeting of 20 November 2023. She confirmed that she was copied on an email dated 22 November 2023 in which the Complainant raised concerns and sought an apology. The witness stated that she responded the following day. She testified that when the Complainant raised allegations concerning her treatment, she provided the grievance procedure to her. She explained that this was standard HR practice. When asked whether the Complainant proceeded with a formal grievance, the witness confirmed that she did not.

The witness confirmed that although the Complainant did not formally invoke the grievance procedure, an investigation was nonetheless carried out into the issues raised. She stated that the grievance outcome was completed after the termination of the Complainant’s employment. When I asked about this sequence, she confirmed that the grievance outcome issued after dismissal

The witness was asked whether she was aware of any disability during the Complainant’s employment. She stated that she was aware the Complainant had been on sick leave and that occupational health processes had been initiated. However, she confirmed that no formal diagnosis of PTSD had been disclosed during employment, nor did the Complainant attend for an occupational health assessment, as offered, when she presented herself as ill.

The witness was asked whether she had ever been made aware of a race discrimination complaint during the Complainant’s employment. She confirmed that no such formal or informal complaint was made. She described the organisation as multinational and stated that diversity and inclusion were part of its core values. She stated that the company had over 50 nationalities working there.

She confirmed that diversity and inclusion training formed part of induction and that the company conducted employee engagement surveys in which diversity scored highly.

Cross-Examination by the Complainant

The Complainant cross-examined the witness primarily on the grievance investigation. She challenged the fairness of the grievance outcome being completed after termination. She asked whether it was appropriate for the Complainant’s direct manager’s superior to be involved in reviewing the grievance. The Complainant put it to the witness that this was not independent and was therefore unfair. The witness responded that appropriate personnel were selected who were not directly involved in the matter and that the process followed internal governance standards. The Complainant also questioned whether her laptop access had been blocked on the date of dismissal and suggested that this demonstrated unfair treatment. The witness responded that deactivation of IT access is standard procedure when employment ends and is a security matter rather than a punitive step. When I asked about the practical value of a grievance outcome issued after termination, the witness acknowledged that it was primarily for the organisation’s governance and to ensure matters were reviewed internally.

Respondent Argument.

The Respondent denies that the Complainant was subjected to discrimination on the race or disability grounds contrary to the EEA, or that she was penalised for having made a protected disclosure under the PDA. It submits that the Complainant has failed to establish a prima facie case of discrimination and therefore the burden of proof does not shift to the Respondent.

The Respondent relies on section 85A of the Employment Equality Acts, which requires a complainant to establish primary facts from which discrimination may be inferred before the evidential burden shifts to the employer. In support of this proposition, the Respondent cites the decision of the Labour Court in Margetts v Graham Anthony & Company Limited [EDA038], in which the Court stated that the mere fact that a complainant falls within one of the protected grounds is not sufficient to establish discrimination; rather, the complainant must adduce facts from which it may reasonably be inferred that discrimination has occurred.

The Respondent submits that the Complainant has not identified an appropriate comparator and has not demonstrated that she was treated less favourably than any other employee on the grounds of race or disability. It contends that the termination of the Complainant’s employment arose solely because she failed to meet the performance standards required during her probationary period. The Respondent states that the Complainant was provided with regular feedback during a series of informal and formal probation review meetings and was advised that her performance remained below the required standard.

The Respondent further submits that the Complainant went on sick leave prior to the scheduled outcome meeting and did not attend occupational health appointments arranged to support her return to work. It maintains that the decision to terminate her employment was therefore taken in accordance with the company’s probation policy following her failure to successfully complete probation.

In relation to the allegation of penalisation, the Respondent submits that no protected disclosure within the meaning of the Protected Disclosures Act 2014 was made during the Complainant’s employment. It relies on the definition of “relevant wrongdoing” contained in section 5(3) of the Act and argues that the matters raised by the Complainant concern personal workplace grievances rather than information tending to show a relevant wrongdoing.

The Respondent also refers to the Code of Practice on Protected Disclosures Act 2014 (SI No. 464/2015), which distinguishes between a personal grievance relating to a worker’s employment and a protected disclosure concerning wrongdoing in the public interest. It submits that the issues raised by the Complainant — including complaints regarding the probation process, meeting procedures, and alleged workplace behaviour — fall within the category of a grievance rather than a protected disclosure.

In conclusion, the Respondent submits that the Complainant has failed to establish the statutory threshold required under the Employment Equality Acts and has not demonstrated that any protected disclosure was made. It therefore contends that the complaints should be dismissed in their entirety.

The race and disability complaints are made under the Employment Equality Acts 1998–2015 (EEA). The Complainant submits she was discriminatorily dismissed on the grounds of race and disability.  The penalisation claim is brought under the Protected Disclosures Act 2014 (PDA). The Complainant states she made protected disclosures and that she was penalised by way of unfair treatment and was under a threat of dismissal, because of making these disclosures.   I must first look at the applicable law in these areas and apply the law to the facts as I see them.

CA-000662026-001, -002: Discriminatory Dismissal on Race and Disability Grounds.

Section 6, of the EEA, in its relevant Parts, describes discrimination on the grounds of disability and race:-

(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,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

…(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”)…”

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”)…

Section 2 of the Acts defines disability as follows:

“disability” means—

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

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

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

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

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

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

The burden of proof is on the Complainant to present, in the first instance, facts from which it can be inferred that she was treated less favourably on the grounds of disability. 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.”

The Complainant must first establish (1) that she had a disability or of a certain race as defined  within the Acts’ parameters and (2) show primary facts upon which she maintains she was discriminatorily dismissed on those grounds.

Race Grounds:

The Complainant’s race claim rests mainly on two points:

1.      An alleged remark by her manager; and

2.      Her belief that Irish colleagues were treated more favourably during probation.

She said that her manager told her: “Why don’t you marry an Irish guy? You people tend to stick to your kind.” The Manager, Mr B, vehemently denied making this remark and there are a number of reasons why I am not convinced about the credibility of the Complainant’s evidence on this. She accepted that she did not include this allegation in her original complaint form, or submissions, but instead included it in a late submission. She did not raise it through a grievance at the time. Her explanation was, in effect, “I just ignored it.” Mr B also gave uncontested evidence on the  admitted  dishonesty of the Complainant in relation to another issue, absence at work on a given afternoon,  when she first declared that it was due to a technical failure of her computer; later explicitly  admitting to dishonesty when she admitted  that she fell asleep. Taking the foregoing considerations on credibility into account, I prefer the evidence of Mr B that no such remark inferring racism occurred. 

Even if I were to assume that the remark was made, that does not automatically mean the dismissal was discriminatory. Section 85A requires facts from which it can reasonably be inferred that the dismissal happened because of race.

Here, the documentary record shows a series of probation meetings in September and November, culminating in a review on 20 November 2023 and a planned outcome meeting on 22 November 2023. Part of her case of discrimination was that these meetings were not documented but accepted at the hearing that there was full documentation of reported shortcomings, on which she was copied. The Complainant accepted those meetings took place. Her response was to say that her work was good and that her reports were “excellent.” That is her assessment of her performance. It is not evidence that race played a role in the termination decision.

She also referred to Irish colleagues and said they “didn’t go through the same treatment as I would have.” However, she did not show that any of them were in the same position — that is, on probation with documented performance concerns and facing a final review. A number of the Respondent witnesses gave evidence of uniformity of treatment to employees on probation in a company staff complement made up of over 50 races.  

I also note that when confronted with specific performance documents, her responses often shifted to general claims of “gaslighting” and references to “unnamed people, unnamed scenarios…and he made me cry.” I accept that the Complainant was distressed. However, distress does not replace the need for clear, factual primary facts linking the dismissal to race.

Taking everything together, I am not satisfied that the Complainant has established facts from which race discrimination can reasonably be inferred.

Disability.

The Complainant described mental health difficulties, including PTSD, anxiety and depression. She said she was “very traumatised,” “couldn’t get out of bed” and “couldn’t eat” at the latter stages of her probation period and in the immediate aftermath of termination of her employment.  I accept that she experienced real distress and illness. The Complainant’s case was based on a diagnosis of PTSD by her GP in a letter dated 26 February 2026. Significantly there was no official diagnosis of PTSD but there was an opinion that the Complainant had symptoms of it but suggests that it was the loss of the job that caused the PTSD. The legal issue for me to determine is not whether she suffered from PTSD, it is whether she was dismissed because of PTSD within the meaning of the EEA Acts.

A central difficulty in her case is that she did not establish that the Respondent knew, or should reasonably have known, that she had a disability at the relevant time. When asked whether she told her employer she had PTSD, she answered: “No.” She also accepted that she did not know she had PTSD at the time. She relied instead on the fact that she told HR she was “very ill.” During the hearing, the point was put to her directly: “How would the employer know that you had PTSD then if you didn’t know?” She did not provide a clear answer to that question. She returned to the view that the Respondent should have investigated further. However, the evidence did show that the Employer tried to investigate her illness further and referred the Complainant for occupational health assessment, but the Complainant declined the offer.

It is also significant that the probation process, including the 20 November 2023 review and planned outcome meeting, was already underway before the Complainant’s illness escalated. The evidence supports the conclusion that the decision was linked to performance during probation, not to disability. Disagreement with performance assessments does not amount to evidence of discrimination. Fundamentally, an employer must be made aware of a disability which did not happen in this case.   For these reasons, I find that the Complainant has not established the basic facts required under section 85A to shift the burden of proof therefore I find that she was not discriminately dismissed on the grounds of disability.

CA-00062026-003:Penalisation for having made protected disclosures under Schedule 2 of the Protected Disclosures Act 2014.

The Complainant contends that she made protected disclosures when she raised concerns about the probation process, the manner in which her performance was assessed, and what she described as abuse of managerial authority. She says that the threat of dismissal amounted to penalisation for having raised those matters.

Section 5 of the PDA, in its relevant parts, provides:

(1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 7B, 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in a work-related context.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker's contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

…(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,…

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.

(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker's employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.

(5A) A matter concerning interpersonal grievances exclusively affecting a reporting person, namely, grievances about interpersonal conflicts between the reporting person and another worker, or a matter concerning a complaint by a reporting person to, or about, his or her employer which concerns the worker exclusively, shall not be a relevant wrongdoing for the purposes of this Act and may be dealt with through any agreed procedures applicable to such grievances or complaint to which the reporting person has access or such other procedures, provided in accordance with any rule of law or enactment (other than this Act), to which the reporting person has access. …

(7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.

(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

The starting point is section 5 of the Protected Disclosures Act 2014, which defines a “protected disclosure” as a disclosure of information which, in the reasonable belief of the reporting person, tends to show one or more “relevant wrongdoings.” However, section 5(5A) — inserted by the 2022 amendment — makes an important clarification. Section 5(5A) provides that a matter is not a “relevant wrongdoing” if it concerns interpersonal grievances exclusively affecting the reporting person. This includes grievances about interpersonal conflicts between the reporting person and another worker, or decisions relating to the reporting person’s engagement, promotion, transfer, or terms and conditions of employment. In other words, a complaint that relates solely to how the reporting person has been treated in their own employment — without disclosing wrongdoing of a broader nature — does not fall within the statutory definition.

Against that framework, I consider what the Complainant disclosed. The evidence shows that the Complainant raised concerns about:

·        The alleged misrepresentation or inconsistent application of the probation process as applied to her.

·        The way performance concerns were communicated to her.

·        The scheduling and conduct of probation review meetings.

·        The alleged unfairness of the termination decision.

·        What she described as ‘gaslighting,’ and managerial misconduct directed towards her personally.

These matters were framed throughout as concerns about how she herself was being treated. They were not presented as disclosures of systemic illegality, criminal conduct, health and safety risks, breaches of statutory obligations affecting others, or wrongdoing extending beyond her own situation. No evidence was produced that she communicated information tending to show any of the categories of “relevant wrongdoing” set out in section 5(3). `

On the evidence before me, what the Complainant communicated were personal employment grievances relating exclusively to her own probation, performance assessment and dismissal. Those matters fall squarely within section 5A. They concern decisions relating to her engagement and terms and conditions of employment and alleged interpersonal conflict between her and her line manager. Section 5(5A) makes clear that such matters do not constitute “relevant wrongdoing.” As a result, they cannot amount to protected disclosures within the meaning of section 5. For these reasons, I find that the Complainant did not make protected disclosures within the meaning of the Protected Disclosures Act 2014. Accordingly, the complaint of penalisation under section 12 was not well founded.

CA-00062026-001: For the reasons outlined above, I find the Complainant did not make out a prima facie case as required under section 85(A) of the Employment Equality Acts 1998-2015 that she was discriminated against by way of discriminatory dismissal on the grounds of race.

CA-00062026-002: For the reasons outlined above, I find the Complainant did not make out a prima facie case as required under section 85(A) of the Employment Equality Acts 1998-2015 that she was discriminated against by way of discriminatory dismissal on the grounds of disability.

CA-00062026-003: For the reasons outlined above, I find that the Complainant did not make a protected disclosures as defined under section 5 of the Protected Disclosures Act 2014, as amended, therefore I decide her complaint of penalisation was not well founded.

Employment Equality Act 1998, Race, Disability, Protected Disclosures Act 2014, Penalisation.