Complainant

Respondent

Anonymised Parties

Former employee

A State Body

Representatives

Self

Kiwana Ennis, BL, instructed by Byrne Wallace Shields LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00068251-001

19/12/2024

The Complainant was employed at Principal Officer grade with the Respondent.  She commenced employment in May 2017 and resigned in December 2024.  Her salary was €123,481.

She submitted this complaint to the Workplace Relations Commission (“the WRC”) on 19/12/2024 alleging discrimination on the gender, age, disability and family status grounds.  She is also alleging that she was discriminated against by a failure to provide reasonable accommodation.

The Respondent denies all the claims raised and submits that the Complainant has failed to establish a prima facia case of discriminatory treatment on any of the identified grounds.  The Respondent also notes that the cognisable period for this complaint runs from 20/06/2024.

The Complainant also submitted a complaint of constructive discriminatory dismissal and a complaint of penalisation under the Health Safety and Welfare at Work Act, 2005 on 17/06/2025.  These complaints have been adjudicated upon in the decision ADJ-00060314.  The Complainant is relying on the same set of facts and circumstances in the within complaint.  This decision should be read in conjunction with that decision.

The Complainant gave evidence on affirmation.  She outlined that she commenced employment in May 2017.  Another employee (Mr B) commenced in October 2020 and reported to her.  After this employee passed his probation, the Complainant noted that he became difficult to manage and argued about everything she asked him to do.  The Complainant raised this informally with him and kept her manager, Mr A informed.   She was responsible for the implementation of a major project and she was concerned that it would not be delivered due to the issues associated with Mr A.  The Complainant submits that nothing was done by the Respondent to assist her in managing the difficulties with Mr B.

The Complainant is advancing the following as evidence of discriminatory treatment:

1.       Gender:

(a)    she was informed by Mr A that he had sympathy for Mr B because he had to take instructions from a younger woman.

(b)    The CEO sent an email to the organisation indicating that the Complainant was to be removed from her role for a period of two years.

2.       Age:

(a)    she was informed by Mr A that he had sympathy for Mr B because he had to take instructions from a younger woman.

(b)    The CEO sent an email to the organisation indicating that the Complainant was to

be removed from her role for a period of two years.

3.       Disability:

(a)    The CEO sent an email to the organisation indicating that the Complainant was to be removed from her role for a period of two years.  This was sent just two weeks after he received notice of her diagnosis.

4.       Family status:

(a)    The Complainant had to take leave for family reasons in May and June 2022 and she submits that the CEO has a negative attitude to women who take time off for family reasons.

(b)    The Complainant was not supported by the Respondent in addressing the situation with Mr B.

A more detailed summary of the Complainant’s evidence and cross examination is outlined in the Adjudication Decision: ADJ-00060314.

The Respondent submits that the Complainant has not established a prima facie case of discriminatory treatment on any of the identified grounds of gender, age, disability and family status.  The Respondent’s position is that the Complainant’s complaints as set out in her submission are unsubstantiated, speculative and based entirely on her subjective view of events.

Further details of the Respondent’s evidence and cross examination are also outlined in the Adjudication Decision: ADJ-00060314

CA-00068251-001: This is a complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act.  She submitted her complaint to the WRC on 19/12/2025  In her complaint form she alleges that she was discriminated against on the basis of her gender, age, disability and family status grounds.

The Respondent submits that the complaint is not well founded as no discrimination took place and the Complainant did not provide sufficient evidence to ground a complaint under the Act.

Section 6 of the Employment Equality Act, 1998, states:

“6.— (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—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different civil status (in this Act referred to as “the civil status ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “the sexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(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”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”)”.

This complaint is made pursuant to the Employment Equality Acts on the basis that the Complainant was discriminated against by the Respondent because her gender, age, disability and family status.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (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.”

The effect of S.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility was on the Complainant to show that, based on the primary facts, she has been discriminated against because of her gender, age, disability and family status grounds.

The Complainant provided the hearing with a submission which provided a narrative of events since her employment commenced on 05/05/2017 up to the date of her dismissal 20/12/2024.  As her complaint was submitted to the WRC on 19/12/2024 the cognisable period is from 20/06/2024 to 20/12/2024.

The explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, which addresses the onerous nature of the burden of proof is also helpful:

“This requires that the Complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In assessing whether the Complainant has discharged the burden of proof under Section 85A of the Act, I have considered the entirety of the evidence adduced at the hearing.  The Complainant asserted that she was discriminated against because of her gender, age, disability and family status.  However, she has failed to establish primary facts from which it could reasonably be inferred that the principle of equal treatment was not applied to her.  Mere assertion, without supporting evidence, is insufficient to shift the burden of proof to the Respondent.

The Complainant gave evidence in relation to the project she was undertaking and the difficulties she experienced with a colleague who was reporting to her and who failed to follow her instructions.  She asserts that she received no support from the Respondent in relation to this matter. 

The Respondent commissioned an external investigator in relation to complaints submitted by her colleague, Mr B and also her complaint in relation to Mr B.  The Complainant believes that this investigation was protracted and the Respondent took no steps to ensure an expeditious completion.

The Complainant in her evidence stated that she was not given any opportunity to appeal the findings.

Finally, the Complainant did not provide any evidence in relation to a comparator.   It is a well-established principle governing the burden of proof in discrimination claims a comparator is required.  A Complainant must prove less favourable treatment as compared with another employee in a similar position to themselves and who does not possess the protected characteristic which the Complainant has, and who was treated differently.  Section 6 of the Act requires the comparator to be in a “comparable situation”.   Without a comparator it is difficult to substantiate complaint of discrimination.  There are situations where a Complainant can rely on a hypothetical comparator. (Ntoko v Citybank, [2004] 15 E.L.R. 116).

Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 at para 2-207 commenting on Southern Health Board v Mitchell (2001) E.L.R. 201 noted:

“This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Tribunal or Court at the level of balance of probabilities and if proven, must be of sufficient significance as to raise an inference of discrimination. In the case before it, the Labour Court found, on the facts of the case, that the Complainant could not demonstrate superior qualifications and experience than the successful appointee and that she therefore failed to discharge the burden of proof that rested on her”.

In Cork City Council v McCarthy (2008) EDA0821 the Labour Court also stated:

“The type or range of facts which may be relied upon by a Complainant can 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 or presumption contended for can properly be drawn from those facts.  This entails a consideration of the range of conclusions which may be appropriately drawn to explain a particular fact or a set of facts which are proved in evidence”.

Having considered the evidence, I find that the Complainant has failed to establish, on the balance of probabilities, that the Respondent discriminated against her on the basis of her gender, age, disability and family status.  Accordingly, I am not satisfied that the Complainant has met the evidential threshold required under section 85A of the Act.  It follows that the Respondent did not engage in discriminatory conduct.

I have decided that the Complainant has not met the evidential threshold required under section 85A of the Act.  It follows that the Respondent did not engage in discriminatory conduct.

Discrimination - gender, age, disability and family status.