ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00056645

Parties:

Complaint:

Date of Adjudication Hearing:  15/01/2026

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Schedule 2 of the Protected Disclosures Act 2014,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed initially by the Respondent from April 2018 to September 2019 when she resigned from her employment.  This complaint is linked to a series of complaints submitted by the Complainant, alleging that she was discriminated against on the ground of disability in relation to access to employment, that she was discriminated against in 2 applications for employment when she was not provided with reasonable accommodation and that she was penalised for having made a protected disclosure when she was in the employment.

In this decision, the complaint of penalisation for having made a protected disclosure is examined.

Because both parties made consolidated submissions, with considerable detail, and the Complainant has put forward a link between the alleged protected disclosure and her unsuccessful applications for employment, the written and oral submissions are included here in some detail.  The matter of “the protected disclosure” however, is the main feature of this investigation and decision.

In accordance with Section 41(13) and (14) of the Workplace Relations Act 2015 as amended I have decided, due to special circumstances, including medical circumstances, to anonymise the decision.  

Summary of Complainant’s Case:

The Complainant made written and oral statements summarised as follows:

The written statement as contained in her complaint form is:

She stated that she was treated less favourably in relation to an April 2025 recruitment process after she disclosed her disabilities which are Autism and ADHD.

Despite openly disclosing her neurodivergence and providing documents in advance, she was assessed against norms that do not reflect neurodivergent communication styles.  Despite asking to bring in a communication aid that showed her ability for the job (including months of management meetings about her performance) she was penalised for not coming up with different examples on the spot, which is difficult for people with her disabilities. They penalised her for "going off on a tangent" without any recognition that this is a known trait of neurodivergence, particularly ADHD and autism. She highlighted that she needed a communication aid because of this issue. She had a proven track record of being able to perform in the job, as she had documents showing she was top of the sales team in 2019.  To judge her on her ability to answer competency based questions which are highly confusing for autistic persons is extremely unfair, considering she scored as outstanding in all her training and management reports.

The Respondent applied rigid, standardised scoring criteria during the interview which, while appearing neutral, placed her at a particular disadvantage as a neurodivergent candidate. These included requirements for concise responses, "balanced" conflict resolution and KPI-focused thinking. No adjustment was made to the competency framework to reflect inclusive or neurodivergent-friendly approaches, despite the Respondent being on notice of her disability following a previous complaint in 2024. She believes the accommodations provided were a tick box exercise and they failed to show how their systems and processes support neurodivergent applicants and view them through the lens of their disabilities, looking at them in a positive way instead of looking for reasons to mark them down based on neurotypical standards.

Failure to Provide Reasonable Accommodation

Although she disclosed her disabilities and submitted supporting documentation in advance, the Respondent failed to make meaningful accommodations to the interview process. They provided only surface-level adjustments (e.g. printing her materials, allowing slightly more time), but did not adapt the interview format, scoring criteria or panel expectations in line with their obligations. This failure fundamentally undermined her ability to perform. If she did not have evidence of her suitability, this kind of discrimination would be impossible to prove. However, she is over-qualified at a level above the standard required.   She had raised issues in 2024 of discrimination and other failures, which the Respondent found themselves to be answerable for in an internal investigation. The systems and processes in place need to be examined. She states that she can now not apply for a job there for two years. 

Victimisation

The Complainant previously submitted a complaint in relation to a 2024 interview, which was partially upheld in an internal investigation. She believes that her involvement in that complaint negatively influenced how she was perceived in the 2025 process. Despite being on notice of their failings, the Respondent’s conduct during the second interview reflected continued bias, an overly critical lens, and a lack of genuine corrective action amounting to less favourable treatment for having asserted her rights.

The Protected Disclosure

The Complainant outlined her experiences during her employment with the Respondent in 2018/2019.  She stated that a number of new entrants had suffered stress during their induction course and she helped them with their written concerns when they were giving them to management.  She stated that the atmosphere towards her changed and some individuals blamed her for the situation and she ended up resigning her position in 2019.

The background to the protected disclosure was described as follows:

Many of the new incoming advisors group were discussing how much they were struggling with their mental health and they didn't feel they were receiving adequate support in the transition to working alone on the phones.

One of the group was asked by others to send an email to management and she didn't want to do it in fear of reprisal but did so with the support of her colleagues who all consented to being included in the email.  She sent it to the Complainant first as she had spent 5 weeks supporting them and they trusted her and knew she wouldn't judge them.    The Complainant replied in a supportive and encouraging manner, speaking of the company in a positive way.   She subsequently made a jovial reference containing a hashtag for which she was then scolded.

The Complainant gave evidence by affirmation.   She outlined her criticisms of the selection process in that she was not given a proper opportunity to express herself in interview, and she was prevented from submitting important documents which showed her excellent performance when she was in the role some years before.  She was told at interview that these examples were not relevant, she was described in feedback as being off the point.  She contended that she had a pre-interview call with HR in which she disclosed her disability and she contends that this was not taken into account and was a failure on the Respondent’s part to provide her with reasonable accommodation.  She stated that she was penalised for having been associated with a protected disclosure while she was in the employment and that she was told she could not reapply (for the 2025 vacancy) while there was an active complaint.  She had many complaints about data protection and what she perceived as the Respondent concealing information.  She made a complaint to the Data Protection Commissioner and her case was ongoing at the time of the hearing.  She subsequently submitted a report in which the DPC found shortcomings in the Respondent’s records.

Summary of Respondent’s Case:

The Respondent made a consolidated written submission, encompassing all complaints made by the Complainant.

In summary, the submission made is as follows:

The Complainant has instituted three complaints under the Employment Equality Acts 1998- 2021 and the Protected Disclosures Act 2014 (as amended) (the consolidated versions being the “Employment Equality Act” and the “Protected Disclosures Act”) against the Respondent.

Specific complaints

In Specific Complaint CA-00068117-001, the Complainant alleges that during the recruitment process in July/ August 2024, no reasonable accommodations were provided to her and there was procedural unfairness. The Complainant alleges that there was a delay in providing written communication to her relating to her interview notes (through her DSAR). The Complainant further alleges that after raising her concerns about recruitment process, she was victimised for her complaints.

In Specific Complaint CA-00068890-001, the Complainant alleges that she was penalised for making a protected disclosure under the Protected Disclosures Act. The Complainant alleges that she had been penalised for her association with an alleged protected disclosure during her employment and this penalisation influenced her treatment during the recruitment process.

In Specific Complaint CA-00072554-001, the Complainant alleges the following:

(a) That she was treated less favourably by the Respondent during a recruitment process in April/May 2025 based on her disabilities;

(b) That she was penalised for having a disability and subsequently directly and indirectly discriminated against under the Employment Equality Acts;

(c) That the Respondent failed to provide reasonable accommodations to the interview process; and

(d) That she was victimised for previously raising a complaint.

The Respondent wholly denies all of the assertions which have been made by or on behalf of the Complainant to the effect that the Respondent has acted wrongfully or in breach of statutory duty. Insofar as each and every such assertion made is not specifically addressed in this submission, same is in no way to be taken as an acceptance by the Respondent of the truth or accuracy thereof.

Preliminary Application

The Respondent made a preliminary application that the hearing should be heard in private or at the very least the publication of the decision should have the parties anonymised and that no servant or agent of the Respondent should be identifiable from the decision that issues.                                     ADJ-00025149 A Teacher v A Board of Management was cited to support the application.

The Complainant is a former employee who resigned from her role in the Respondent on 13 September 2019 of her own accord (resignation email provided). She had been an employee from 30 April 2018 until she resigned on 13 September 2019. The Complainant reapplied to the Respondent, interviewed for a role on 2 August 2024 (the “2024 Interview”) and was unsuccessful. At some point prior to this interview, but after her employment with the Respondent had ended the Complainant was diagnosed with Autism Spectrum Disorder (“ASD”) and Attention Deficit Hyperactivity Disorder (“ADHD”) (collectively her “Disabilities”). The 2024 Interview process is the subject of the first two complaints, where the Complainant is alleging discrimination. The Complainant also alleges she made a protected disclosure to the Respondent and was penalised for this. The Complainant claims that she was penalised in 2019 resulting in her leaving her employment (which is not the subject of these complaints) and that her failure at interview in 2024 and subsequent interview in 2025 (the “2025 Interview”) forms part of the penalisation she is claiming to be suffering. The Complainant re-interviewed for a role on the 14 May 2025 and was unsuccessful. This is the subject of her third complaint.

Alleged Protected Disclosure 2019

The Complaint has contended that due to her association with an alleged protected disclosure which was raised in 2019 by a colleague by way of email she has been penalised constantly by the Respondent. It is the Complainant’s position that this penalisation led to her leaving her employment and the ongoing penalisation is why she is not successful at interview with the Respondent. From the Respondent’s perspective, in 2019 there were no issues with the Complainant, and her departure was on good terms as outlined in her resignation email. Furthermore, the Complainant outlined to Mr F – a Talent Acquisition Manager in the Respondent’s HR department, on 22 August 2024 that the reason she left the role was that she found it difficult to organise lifts to and from the Respondent’s offices. There was no reference to any alleged protected disclosure by the Complainant either in 2018 or in 2024. Only in 2025 did the Complainant first contend that she had raised a protected disclosure and was being penalised for doing so. A full investigation has been made by the Respondent into this allegation, wherein a number of her colleagues were interviewed. The outcome of that investigation found that there was no evidence of penalisation and actually noted several positive interactions between the Complainant’s relationship and personnel alleged to have been involved in penalisation during the relevant period (including where the Complainant nominated her colleagues for “team of the year” at an award ceremony. It is the Respondent’s position that no protected disclosure under the Protected Disclosures Act was ever made by the Complainant or associated with the Complainant. For the avoidance of doubt, no penalisation has occurred or is occurring. The Respondent has a dedicated “Speak Up Policy” which has been put in place in order for employees to make reports  - this was not utilised by the Complainant at any time during her employment up to her resignation in 2019. It is wholly unsatisfactory and impermissible for the Complainant to seek to rely upon alleged events from 2018, which are in any event long outside the cognisable period in respect of a claim presented to the WRC.

The 2024 Interview

The Complainant was employed by the Respondent from 2018 to 2019, leaving of her own accord. The Complainant reapplied to the Respondent on two occasions and alleges that she was subject to disability discrimination and victimisation during the recruitment process.

The Complainant applied for the role of Consumer Sales Advisor and was called for the 2024 Interview on 2 August 2024. The 2024 Interview panel consisted of Ms K, a Recruitment Specialist  and Mr O, a Contact Centre Team Leader and one of the hiring managers for the open position.

During the 2024 Interview process, which took place between July and August 2024 the Complainant alleges that she was treated less favourably during the recruitment process because of her disclosed Disabilities of Autism and ADHD. The Complainant alleges that there was a refusal to accommodate her disclosed Disabilities. It is the Respondent’s position that Ms K was unaware of her diagnosis and that it was only at the interview itself that Ms. K first became aware of any disability, as a result of the Complainant saying this at the interview.

It is the Complainant’s position that she had a long pre-interview call with Ms K. However, this is completely denied by Ms K. who will give evidence to the effect that a pre-screening call took place with the Complainant on 25 July 2024. During this call the Complainant and Ms K discussed working hours, training period, shift patterns, office-based work during the first 3 months of employment, targets, fast paced environment, hybrid working, the nature of the role. Ms K did not have a conversation with the Complainant in advance of the 2024 Interview regarding the Complainant’s Disabilities or any reasonable accommodations that the Complainant may have needed. According to Ms K, to “the best of my memory, she [the Complainant] didn’t make me aware [of the Complainant’s Disabilities] until we were in the interview.” (from interview notes provided). Further, it was not apparent to Ms K during the interview that any accommodations for the Complainant were required.

The Complainant has alleged that she submitted a number of documents to Ms K in advance of the interview. Within this documentation (which was quite voluminous) there was a reference to the Complainant’s Disabilities and diagnosis that had occurred since the Complainant left her employment with the Respondent in 2019. Ms K acknowledges and agrees that she did receive this documentation in advance of the interview on 1 August 2024, which mostly contained documents from her time in the Respondent up to 2019 with compliments for the Complainant, Ms K did not review the material as, in order to give all candidates an equal opportunity at interview, Ms K intended to rely on the candidates’ performances at interview rather than on supplementary material (interview notes provided). For the avoidance of any doubt, Ms. K did not become aware of the Complainant being under any disability until the interview itself on 2 August 2024.

Ms K was accompanied in the 2024 Interview by her colleague Mr O Contact Centre Team Leader, who was the hiring manager for the open position. Mr O was a former colleague of the Complainant, and they were friends who remained in contact through Facebook Messenger up to 1 June 2020. On 26 June 2024, after receiving the call for interview, the Complainant messaged Mr O to inform him of same. As part of these messages to Mr O the Complainant informed him that she “had been diagnosed as autistic with ADHD”.

It is the Respondent’s position, that although Mr O was made aware in advance of the 2024 Interview of the Complainant’s Disabilities, he was informed in his personal capacity. It was not for Mr O to inform the Respondent of a prospective employee’s personal medical data, particularly since as far as he was aware that prospective employee had not informed the Respondent herself.

The Respondent respectfully submits that the alleged failure to provide the reasonable accommodation in terms of acceding to the requests made by the Complainant during the interview was not discriminatory.  Ultimately the Complainant was unsuccessful at the 2024 Interview.

After receiving the results of her interview, the Complainant sent a number of emails to Ms K requesting feedback and explanations over and above what the Respondent would normally provide (emails provided). The matter was escalated to Mr F, who began an open dialogue with the Complainant. Mr F and the Complainant had an informal call on 22 August 2024 (notes from this call provided). The aim of this call was to support the Complainant and reflect with her on how the interview had been carried out, using a standard competency-based process.

The Complainant continued to make persistent contact with a number of employees within the Respondent over Facebook and by email (for example to Mr. O, Mr. F and Ms. K )Unfortunately, none of these employees could assist her. The Complainant, growing frustrated as she perceived there to be a lack of progress by the Respondent to institute a proper investigation into her interview process submitted a DSAR. The DSAR was dealt with in line with the Respondent’s Data Protection policy (provided). The Respondent submits that there were delays in responding to this DSAR due to the nature of the request and the large volume of data associated with the Complainant.

Internal Investigation

Matters escalated further when the Complainant submitted a document of complaints to the Respondent on 28 January 2025, as well as Complaints to the WRC. On foot of the complaints raised by the Complainant regarding her interview process, alleged discrimination, subsequent DSAR issues, and alleged penalisation the Respondent decided to institute an internal investigation in line with its Respect at Work Policy. The Complainant was informed that an investigation was being carried out, but this was an internal investigation only.

The investigation was carried out by Ms D, the Respondent’s HR People Partner, and took a number of months to finalise due to the large number of people to be interviewed and range of allegations raised by the Complainant (redacted report provided). While the investigation did not uphold any finding of discrimination, the report made a number of important recommendations, which focus on improving the Respondent’s interview practices. For example, the report recommends that interviewers should proactively ask neurodivergent candidates about needed accommodations, consider and document any requests, and review any supporting materials in advance. Moreover, the report recommends that teams must promptly act on candidate information requests, notify the data protection team, provide clear guidance for DSARs, address any inappropriate concerns in line with internal policies, and maintain clear procedures specifying when and within what timeframe candidates may re-interview. The Respondent has implemented these practices, demonstrating that it seeks to go above and beyond the required legal standards in accommodating any employees or candidates with a disability.

The report was shared in its redacted form on 5 June 2025. The redactions contained within the report were inserted to remove references to third parties, as well as the recommendations for the Respondent moving forward. The recommendations and the third-party data were not relevant nor was the Complainant entitled to receive same, and this is why it was redacted.

The Complainant at some point after receiving the redacted report fed the report into an AI chatbot and believed the chatbot had uncovered the redactions. By way of correspondence from the Respondent’s solicitor it was confirmed to the Complainant that the AI chatbot had not uncovered the redactions and these were what were referred to as AI hallucinations. Despite the assurances provided by the Respondent’s solicitor the Complainant became extremely upset and felt she was having a “nervous breakdown” due to the supposed uncovered redactions. It remains the Respondent’s belief that the AI chatbot hallucinated the uncovered redactions.

The 2025 Interview

Separately to the above, the Complainant re-applied for the role of Customer Engagement Advisor.   The scoring she received reflect that her skills do not meet the minimum required for the role. The Complainant was informed that the standard could be achieved in the future with further developments and refinement within key areas.

The Complainant failed to make any strong links of the relevance of her experience to the role and how it would benefit her in the position. Ultimately, the Complainant was unsuccessful in her application. The interviewers provided extensive feedback to the Complainant, as requested by her.

Outline of the Respondent’s Legal Arguments

The Respondent’s legal arguments included relevant sections of the Employment Equality Acts 1998-2018 – Section 6 (1) (definitions) and 85A (burden of proof).   Case law in relation to the burden of proof included:

Rotunda Hospital v Gleeson [DDE003/2000] and Melbury Developments Ltd v Valpeters [2010] ELR 64.  It is submitted that the Complainant has not discharged the burden of proof that rests upon her to establish that discrimination occurred.

The Respondent's position is that the Complainant was treated fairly during the recruitment process, and in no way was the fact of her disability weighed against her in the decision process.   The Respondent submits that the interview process was fair, balanced and considered.

Penalisation Claim under the Protected Disclosures Act 2014 (as amended)

Section 6 of the Protected Disclosures Act 2014 provides:

6(1) A disclosure is made in the manner specified in this section if the worker makes it— (a) to the worker’s employer, or

(b) where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly—

(i) to the conduct of a person other than the worker’s employer, or

(ii) to something for which a person other than the worker’s employer has legal responsibility, to that other person.”

As will be confirmed in the evidence brought forward by the witness for the Respondent, it is clear that the Complainant did not make a Protected Disclosure in the prescribed manner as outlined in section 6. The Internal Investigation Outcome Report states that there is no record of a concern of this nature being reported by the Complainant or any other individual in line with the Respondent’s Speak Up policy. Rather, an email was sent by a colleague of the Complainant asking for additional support due to stress that colleague was feeling at work  – the Complainant gave feedback on this email prior to it being sent by her colleague. As a result, the height of the email sent by the Colleague was that it was a personal grievance, specifically a request for additional supports arising from workplace stress in relation to how that individual felt at work, and not in anyway, a “report” disclosing any “relevant wrongdoing” amounting to protected disclosure, as set out in section 5(3) of the Protected Disclosure Act.

5(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,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(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,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross.

The Respondent submits that it has a zero tolerance to penalisation for raising or supporting a colleague in raising or supporting a colleague in raising any type of complaint. There is no evidence to suggest that the Complainant was penalised for supporting a colleague in raising a complaint. The Respondent's position is that the Complainant was not penalised.

The respondent explored if the Complainant made a Protected Disclosure under any other manner allowed under the act and found that Sections 6-10 do not apply.

Section 12 of the Protected Disclosures Act 2014 provides:

12(1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

In the English decision, Everett Financial Management Ltd v Murrell EAT/552/02, EAT/ 553/02, EAT/952/02, 18 December 2002, it was held that the disclosure must be a disclosure of

"information- and not merely a bare allegation or an expression of concern.”

In Conway v The Department of Agriculture, Food, and the Marine [2020] IEHC 665, Hyland J. gave the following guidance at paragraph 71 in determining whether penalisation has occurred:

[T]he obligation is to consider whether penalisation has taken place and the cause of same. That exercise sometimes takes place in a number of steps i.e. to identify the act or omission, to consider whether it constitutes detriment and then to examine whether the cause of such detriment was the making of a protected disclosure. But the wording of the Act identifies that what is prohibited is penalisation for having made a protected disclosure. To reach a conclusion as to whether s.12(1) has been breached, all three concepts identified above must be considered.

The first step in this process, the identification of the act or omission, involves an examination of whether the acts or omissions complained of occurred in the first place. The second step is to consider whether such acts could constitute detriment, and the third step is to consider whether they occurred on foot of making the protected disclosure. The Respondent rejects any claim that the Complainant raised a protected disclosure.

In relation to this third step of causation, in Monaghan v Aidan & Henrietta McGrath Partnership [2017] 28 ELR 8, the Labour Court set out the test for causation in the context of penalisation as follows at pg. 16:

…[T]he detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that ‘but for’ the complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.

It is submitted that the Complainant’s allegations do not meet the first and second steps in assessing causation in the context of penalisation: the Complainant did not suffer any detrimental treatment for raising any concern; as the above chronology and documents exhibited demonstrates – there is no causal link between the incident in 2019 and the subsequent interview process furthermore, no concern was raised at any stage by the Complainant which could constitute a protected disclosure within the meaning of the Protected Disclosures Act 2014.

Conclusion

The Complainant alleges that she was refused employment for reasons related to her disability. This allegation is wholly unfounded. The Respondent does not discriminate against their employees based on their disabilities or otherwise. The Respondent is an equal opportunities service. The Respondent rejects that any protected disclosure was made by the Complainant. The Respondent rejects that the Complainant was victimised or penalised in any way. The reasons for not employing the Complainant are not connected to her disability or any alleged protected disclosures that had previously been made.

For the reasons expressed above, it is submitted on behalf of the Respondent that the Complainant’s complaints should be dismissed in their entirety.

Evidence was given in relation to the “2024 interview” by affirmation by Recruitment Specialist Ms K.  She stated that there were up to 240 applications in the particular recruitment process.  The norm would be for Ms K to speak on the phone to those who were shortlisted to discuss the role, communications skills required, and general suitability.  Ther were 12 roles to fill and the candidates on the shortlist were interviewed. The Complainant were interviewed on 2 August 2024.   Scoring at interview level was set at 650 and candidates who reached lower than 650 were deemed unsuccessful.  The Complainant scored 632.5.   Her lower scores were in time management, resilience and understanding the role.    The Complainant was interviewed for 1 hour and 10 minutes.  The norm would be 35-40 minutes.  Ms K did have a conversation by phone with the Complainant on 25 July 2024, prior to the interview but there was no mention of disability.  The Complainant did mention disability or autism at the end of the actual interview and Ms K did mention there is an Occupational Health Nurse in the Company and some mention of neurodivergence.  Ms K stated that she does and did have experience of candidates disclosing neurodivergence but the Complainant did not disclose neurodivergence until the actual interview.  In relation to documents submitted by the Complainant before the interview, Ms K said she looked at them and her main concern was a possible breach of data protection for customers so she sent it on to the Data Protection Officer.  After the Complainant made contact following being told she was unsuccessful, Ms K referred the issue to her Manager Mr F.  Any delays in dealing with it was due to annual leave. In cross examination by the Complainant, Ms K stated that she did not keep any notes of any discussions she had with Mr F.  She said she cancelled the DSAR request as she thought the matter had been handled by Mr F following phone calls between him and the Complainant.  She confirmed that the Complainant’s second application was not considered due to the process undertaken in dealing with a further 1,500 applications.  The Complainant’s application simply was not reached.  This had nothing to do with her neurodivergence.  She stated strongly that she could not have said that if someone drops out of training, then the Complainant might be slotted in.  This just could not happen due to issues such as the intensity of training.   She also stated that she had no knowledge of any protected disclosure allegedly made by the Complainant and was not aware of any past circumstances of the Complainant’s employment.       

Findings and Conclusions:

CA-00068890-001             Protected Disclosures Act 2014

The Complainant submitted a number of complaints regarding the interview process for 2024 and 2025.  This decision concentrates on the allegation that she made a protected disclosure and that she was penalised for the protected act.  The time limits and substantive issues are addressed below.

Time limits

Section 41 (6) of the Workplace Relations Act 2015 provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

This complaint was received on 28 January 2025.  The Complainant’s allegations relate to discrimination and victimisation in relation to the Complainant’s treatment in her employment in 2018/2019 and subsequently to interviews in August 2024 and May 2025 when she was unsuccessful in securing employment. In this specific complaint, she alleges penalisation for having made a protected disclosure.   As the complaint was received on 28 January 2025, the cognisable period for consideration is from 29 July 2024 to 28 January 2025.  In the complaint form, the Complainant referred to a link between this complaint and a complaint she made regarding discrimination in access to employment. For clarity, the circumstances surrounding the “2024 interview” are for consideration in this decision.

Section 6 of the Protected Disclosures Act 2014 provides:

6(1) A disclosure is made in the manner specified in this section if the worker makes it—

(a) to the worker’s employer, or

(b) where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly—

(i) to the conduct of a person other than the worker’s employer, or

(ii) to something for which a person other than the worker’s employer has legal responsibility, to that other person.”

Section 12 (1) of the Act provides:

“12. (1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.”

In this instant case, the Complainant submits that she was subjected to adverse treatment following a protected disclosure with which she was associated in 2019.  An email sent by a new member of staff was given to the Complainant to ‘proofread’ and for her support.   The Complainant contends that she was subjected to adverse and negative treatment by management as a result of a jovial remark she made in relation to the new entrants’ request for support.   As the 2019 situation is out of time, I have no jurisdiction to rule on this aspect of the complaint.   The Complainant submits that her treatment at interview and her subsequent lack of success in her applications for employment was in part due to the protected disclosure which was submitted by colleagues and which she supported.  I note the absence of any formal protected disclosure made by the Complainant.   I note the evidence of Ms K who was responsible for the recruitment process in 2024 that she had no knowledge of the Complainant’s past.

In order to succeed in her complaint, the Complainant must establish and meet the tests set out in the various decisions in case law.

Section 12 of the Protected Disclosures Act 2014 provides:

12(1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure.

To reach a conclusion as to whether s.12(1) has been breached, there are three steps to be considered.  As outlined, the first step is the identification of the act or omission.  The second step is to consider whether such could constitute detriment and the third step is to consider whether there is a causal link.  The Labour Court has referred to this as the ‘but for’ element of the test – ‘but for’ the Complainant having committed the protective act she would not have suffered the detriment.  I find that there is no causal link between the incident in 2019 and the subsequent interview process   and the Complainant did not make a complaint which could constitute a protected disclosure within the meaning of the Protected Disclosures Act 2014.

It follows that the complainant has not made out that there has been penalisation, as defined in the Protected Disclosures Act. I find, therefore, that the complaint 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.

Schedule 2 of the Protected Disclosures Act 2014 requires that I make a decision under that Act.

Based on the findings and reasons above, I have decided that the complaint is not well founded.

Dated:   31st March 2026

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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