Complainant

Respondent

Parties

Hazel  Morgan

Core Caring Limited, t/a Supervised Access Ireland.

Representatives

Lars Asmussen, BL instructed by  Ormonde Solicitors

David Byrnes, BL, instructed by Crawford Gallagher Solicitors

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-00069372-001

18/02/2025

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

CA-00069372-002

18/02/2025

The Complainant was employed as a part-time Family Access Worker by the Respondent from 11/12/2022 until 01/08/2023 when she took up a part-time Administrator role.  She was paid €16.00 per hour and worked 14 hours per week.  Her employment ended on 05/09/2024.  She submitted her complaints to the Workplace Relations Commission on 18/02/2025 alleging that she was discriminated against on the grounds of gender and family status and that she was penalised for having made a protected disclosure. Her complaint of penalisation was withdrawn at the hearing on 02/08/2025.

The Respondent denies the claims and submits that the Complainant was dismissed while on probation and she had not established any facts to prove a prima facie case of discrimination.

Evidence – the Complainant:

The Complainant gave evidence on oath at the hearing on 06/08/2025.  She outlined details of the work undertaken by the Respondent.  This work involves the provision of supervised access to new parents and non-custodial parents.  She commenced employment in December 2022.  He initial work involved the facilitation of access for children and parents.   The CEO was Mr A.  She stated that she reported to a manager who in turn reported to Mr A.  Ms Felicity Galvin oversaw the accounts, and she got more involved in the running of the business when the other director was on leave. The Complainant confirmed that she changed role in August 2023 as a part time administrator.  Her main role was to ensure that all documentation was in place for all staff and this included identification, training and Garda vetting.  She had to liaise with new employees who were about to start.  The Complainant also stated that she had to deal with the reports from supervised access visits to ensure that there were no “Red Flags’ outlined.  She had to file these reports and then follow up on any reports that were not completed.  The Complainant also outlined that she had to prepare reports for Court hearings.  There was one other administration person.  The Complainant gave evidence that she was paid €16.00 per hour in this role and she was paid €16.50 in the family access role.  She worked 14 hours per week and this was done on a Tuesday and Thursday.    She worked remotely in the administration role.  The Complainant also confirmed that she passed her probation successfully and there were no issues then or during her employment. 

The Complainant became pregnant in May 2023 and informed the Respondent.  Her due date was 15/01/2024 and she took parents leave from 08/12/2023 until 04/01/2024 followed by annual leave until the commencement of her maternity leave on 08/01/2024 until July 2024.

The Complainant stated that she was asked by Ms Galvin on 21/08/2024 about her return date and she confirmed that it was 01/09/2024.  The Complainant stated that she had no update from the Respondent about her role or hours when she returned.  She also outlined that she heard that two of her colleagues were let go and she was worried about her role. She was advised by Ms Galvin that she would be issued with a new contract.  The Complainant stated that she thought she would be returning to the same role as there were no discussions with her about a contract.  Her normal workdays were Tuesdays and Thursdays and she was not sure what days she would be back.

The Complainant sent an email on 02/09/2024 asking about her new contract and what work she was supposed to be doing.  She was advised by Ms Galvin that she would be back working the following day.  The Complainant stated that she got an email later that day from Mr A inviting her to a Zoom meeting the following day.  The Complainant confirmed that there was no information about the purpose of the meeting in the email invite.  She did state that she had a feeling about what the purpose might be.

The Complainant outlined that she submitted a medical certificate to the Respondent and the meeting was rearranged for 05/09/2024.  She was not advised that she could have representative with her at the meeting.  The Complainant stated that the meeting was attended by Mr A and Ms Terri-Sue Cosgrave.  She was not aware of any note taken of the meeting.  The Complainant outlined that Mr A stated that 95% of her role was now automated and that her job was no longer available and she would not be returning to work.  She was given no information in relation to what was or was not automated. 

The Complainant stated that she felt that there would be work available as the Respondent got work from Tusla and private cases which could be assigned by a Judge for supervised access.  The Complainant stated that this decision was immediate and she had no formal consultation in relation to this decision.  The Complainant stated that she was not provided with any evidence of automation and she was not given any opportunity to make representation prior to the decision being made. 

The Complainant also confirmed that there was no discussion in relation to any alternative work.  The Complainant stated that she was not given any opportunity to appeal the decision and she had no clue how to do this.

The Complainant stated that two other colleagues were let go before her, but a third colleague was kept on.  The colleague who was kept on was employed after her.  The Complainant stated that she received an email and with a letter attached later that day which confirmed the decision.  She confirmed that she had no contact with the Respondent since that time.

The Complainant confirmed that the copy of the letter opened at the hearing was the one she received.  There is no information in relation to the automation of her tasks. She confirmed that she did not lodge an appeal as she did not know what she was replying to.  She stated that she sent a letter to the Respondent with several queries.  She got a reply on 16/09/2024 but this did not really answer the questions she had asked.  She stated that it did not clarify when the decision was made or if the role was redundant.  The clarity in relation to the automation was not provided.  She was not given an explanation regarding the emails about her new contract and then this was withdrawn. 

The Complainant stated that the letter of 16/09/2024 did offer a role as a Family Access Worker.  She stated that she did want to return to that role as she held such a role previously.  She stated that she sent an email to Ms Galvin to confirm this.  The Complainant stated that she received a letter from the Respondent on 01/11/2024 which stated that the role of access worker would no longer be available due to a further downturn in business.  The Complainant stated that her Data Access Request did not provide any clarity for her.

The Complainant stated that as far as she was aware the colleague who was kept on is still employed by the Respondent.  She has no information regarding why she was kept.  The Complainant stated that she may have been dismissed because she had a second child.  She confirmed that she thought she would be returning to the role she was in or a new role.

The Complainant stated that the decision to end her employment had an effect on her.  She had two young children, and she became anxious and scared about now knowing what to do.  This has been stressful for her as it was her wage, and she needed this for her family.

The Complainant was asked about her attempts to find work, and she outlined that the job she had suited her as it was fully remote. She has not been able to find a job with similar hours and remote.  She stated that she also finds it stressful having to inform potential employers about her job being terminated.  She has not returned to work since.

In response to questions from the Adjudication Officer the Complainant confirmed that her contract with the Respondent was a permanent contract.  She also stated that she could not log on and commence work on 03/09/2024 as the Respondent had blocked her access to the systems.

Cross examination – the Complainant: 

The Complainant was cross examined on 10/02/2026 by Mr Byrnes, BL, on behalf of the Respondent.  She confirmed that she recalled giving evidence at the initial hearing on 06/08/2025.

She was asked if she accepted that when her employment came to an end that she was not pregnant at that time.  She confirmed that she was not. She also accepted that she was not on maternity leave at that time. She agreed that she was on parental leave and confirmed that this was from 08/12/2023 until 04/01/2024 and this leave was for her first child who was 10 months old when she commenced employment with the Respondent.  She confirmed that her initial role was that of access support worker.  She agreed that the Respondent was aware of her pregnancy when she was offered the part-time (two days per week) administration role.  She agreed that she told a manager of her pregnancy and she was approximately 1-2 months pregnant with a due date of 15/01/2024.  She accepted that the Respondents and anyone that mattered in the workplace knew she was pregnant.   She confirmed that she received a text message from Ms Felicity Galvin congratulating her on her pregnancy and she accepted that this was a genuine message.

The Complainant confirmed that she lives in South Dublin and her access work was mainly in North Dublin.  She said that she was assigned two regular clients and one was North Dublin while the other was South Dublin.  The Complainant agreed that she was responsible for ensuring that all paperwork, including vetting was in place. The Complainant confirmed that she interacted with her supervisor (Ms H) every day that she was working but had no contact otherwise. 

The Complainant clarified that she was not complaining about any discrimination in relation to her first child.  She was asked why she came to the WRC alleging that the Respondent discriminated against her on the ground of family status.  She stated that a lot had changed when she returned from leave.  It was put to the Complainant that she was a mother from the outset of her employment with the Respondent and she agreed.  The Complainant also agreed that no one ever criticised her work or said that her work was slacking due to her family status.  She confirmed that she worked seven hours per day and would check in with Ms H.  The Complainant gave details of the assistance she received with child minding during the days she worked for the Respondent.  She confirmed that her workstation was in her spare room.  The Complainant agreed that she had a lot of autonomy in relation to her work

It was put to the Complainant that she was on parental leave from 08/12/2023 until 04/01/2024 and she then commenced maternity leave from 09/01/2024 until 08/07/2024 which was followed by seven weeks of parental leave from 15/07/2024 until 01/09/2024.  She agreed with those and confirmed what during her seven weeks of parental leave she received payments from the Department of Social Protection.  She confirmed that she received no pay from the Respondent during this time.

It was put to the Complainant that she was under no pressure from the Respondent to return to work and she stated, “that’s how it works”.  The Complainant was asked if it was her position that she was discriminated against following maternity leave and parental leave and she confirmed that was her position.  The Complainant agreed that she had approved her written submission.  She confirmed that there was no claim submitted under the Parental Leave Act, but she had a complaint under the Employment Equality Act.  She confirmed that she did not seek advice in relation to Parental Leave, and she never said that she was penalised in relation to parental leave.  She agreed that parental leave is not gender specific but that maternity leave is.

The Complainant was asked to explain why her claim was seeking to conflate that she was discriminated against because she was a woman on parental leave which is not gender specific.  She stated that was how it felt to her.  She was happy in the job and had a good work-life balance and when she returned from parental leave there was nothing there for her.  The Complainant agreed that she was prone to assumptions.  The Complainant was asked if she was saying that the only thing that changed was that she was pregnant and had a baby and she agreed. 

The Complainant was asked if she had any contact with the Respondent and her colleague, Mr D, in relation to vetting matters and she confirmed that she had. This was in relation to reports about the vetting.  She confirmed that she attended her colleagues WRC hearings as a witness although she had never met them in person.  She interacted with Mr D in relation to jobs that were interviewed and they were working together on a filing system.   She confirmed that she was a witness in relation to the vetting issue and what was missing from the filing.  She confirmed that she was unsure what she was a witness to in the case involving Ms T other than she was asked to attend.

The Complainant agreed that she had a previous WRC claim in relation to Holiday pay.   She agreed that she was not alleging that she was victimised because she took that case.  She also agreed that there was no evidence that the Respondent disliked her as a result of taking that case. She confirmed that she was saying that the Respondent discriminated against her.  It was put to her that the Respondent’s witness, Ms Galvin, was a woman and she agreed.  The Complainant stated that she did not know if the Respondent employed people who were also parents.  The Complainant confirmed that she was aware that Mr D had children.  The Complainant confirmed that she was not discriminated against because she had children.  It was put to the Complainant that if the Respondent was the kind of person she was alleging then why was Mr D not discriminated against.   The Complainant stated that she did not know and she was not aware that he was discriminated against.

The Complainant confirmed that she was on sick leave from 02/09/2024 for a period of sick leave.  She attended the doctor because she did not feel well.  She agreed that the dates on the medical certificate were backdated and there is no mention that she is not fit to work or the reason for the illness.  The Complainant agreed that the Respondent would not know from that certificate that she was unable to work and she also agreed that the Respondent took her word that she was sick and no one from the Respondent questioned her in relation to this or her certificate.  The Complainant agreed that although she was on sick leave she was willing to engage with the Respondent on 05/09/2024 on a remote meeting.  She did not ask her GP if she was fit to attend.  She stated that she assumed that it would not be a long meeting, and it was important for her to attend.  She was asked who was at the meeting and she stated that in addition to herself Ms Terri-Sue Cosgrave, HR consultant and she was not sure who else.  She stated that she was in shock when she was told that her job was no longer there and could not remember.

The Complainant was asked what the purpose was of including the medical certificate in her written submission.  She stated that she did not know but she thought it was part of the timeline.  It was put to the Complainant that it is not credible to say she did not know why it was included.  She stated that it was part of the timeline of everything that happened.       

The Complainant was asked to review the email from the Respondent dated 04/12/2023 which stated: “Dear Hazel, As you are beginning your parents’ leave on the 8th we would like to offer you the days off tomorrow, the 5th and Thursday 7th fully paid in thanks for all your good work.  Kind regards”.  She was asked if this email was anti discriminatory in its sentiment and act and she confirmed that it was as she was unable to work.  It was put to the Complainant that employers can always find work to be done.    It was put to the Complainant that despite the background she arrived at the assumption that the Respondent had discriminated against her.  She stated that she would not see it as support and she did not believe it.  She confirmed that she was suspicious as she was locked out of the work systems.  The Complainant was asked if she had anything to support her claim that these days were not given for good reasons and she confirmed that she did not.  She stated that Ms Galvin said it on three occasions, and she did not believe her.

The Complainant was asked why if her claim had nothing to do with pregnancy discrimination she was in the WRC.  She stated that it was the start of the Respondent discriminating against her.  The Complainant was asked if she was saying that it was discrimination by the Respondent to pay her for two days prior to her taking parental leave.  She confirmed that was what she was saying.  It was put to her that was her insight into matters, and she agreed as she was locked out of her work systems.   The Complainant was asked why, if she is alleging that she was discriminated against on 5th September she done nothing about it.  She stated that she had other things on her mind at that time.  It was put to the Complainant that she never made a claim in relation to this to the WRC and she agreed.

The Complainant confirmed that she was making no allegations about any acts of discrimination during her pregnancy and she also agreed that she was not penalised for going on parental leave.  It was put to the Complainant that she should clarify how the Respondent discriminated against her.  She stated that it was because she was pregnant.  She explained that Ms Galvin locked her out of the work system as she was pregnant.  It was put to the Complainant that she had no support for that proposition and it was not credible.  The Complainant stated that she did not accept that.  It was put to the Complainant that she had no evidence of discrimination other that what she described it as.  She stated that she “accepted and assumed that it was discrimination”.

It was put to the Complainant that at the meeting on 05/09/2024 the reasons for her dismissal were set out.  She was on a period of six months’ probation and she did not serve that time.  She accepted that and agreed that she was still on probation on 05/09/2024.  The Complainant was asked if she accepted that an employer could let an employee go on probation without reason.  She accepted that was the case.  It was put to the Complainant that in her case the Respondent met with her and explained the reasons.  She agreed that they did and explained their position.  It was put to the Complainant that she had also known that the Respondent had difficulties with the Tusla work.  She stated that she was not aware.  She was asked if she was aware that Mr D had made a complaint to Tusla.  She stated that she was not aware.  It was put to the Complainant that arising from that event 22 people lost their jobs and some of these had families.  She stated that she was not aware of this.  The Complainant was asked if she was aware of the health difficulties of one of the Respondent’s directors.  She stated that she was not and only heard it at the WRC hearing.

The Complainant was asked if she would accept that as part and parcel of the changing circumstances the Respondent found themselves in, they had to try and sort the business out and that is what companies have to do.  She stated that she accepted that.  It was put to the Complainant that when an employer has to let people go having some on probation is advantageous and she agreed that it would.

It was put to the Complainant that her evidence was that the only thing that changed was her getting pregnant and she agreed.  It was put to her that there were widespread changes with the company and she said that there were.  The Complainant was asked if she did not want irregular work and she confirmed that she liked predictable work.  She was asked if she made any efforts to find new work and she stated that her childcare arrangements stopped and she decided to stay at home full time.  This decision was made in the last 6 months.  She did not have any applications for work.

It was put to the Complainant that she was contracted to work two days per week with the Respondent and she agreed that was the arrangement.  She also confirmed that she availed of some access work.  It was put to her that she was overstating the amount of access work she done while doing the administrative role.  She stated that the access work paid €16.50 per hour Monday to Saturday and €21.00 per hour for Sunday.  The Tusla work paid approximately €5.00 more and also included milage.

The Complainant was asked if she agree that when she applied to Ms Galvin for parental leave on 15/07/2024 she was told that it was not a problem and she was asked how many weeks she wanted to take.  The Complainant agreed.  She also agreed that she was not penalised as a result of taking this leave or for taking parental leave for her first child.  It was put to the Complainant that this approach was inconsistent with the allegations she had made against Ms Galvin.  The Complainant agreed it was.

The Complainant was asked how she could rationalise the fact that the Respondent had no problem with her taking parental leave and not penalising her or discriminated against her for taking the leave and not as a woman.  The Complainant stated, “I think it suited them not to have me”.  It was put to the Complainant that in such circumstances a discrimination claim is made usually because a woman is involved.  She stated that she believed that to be true.  The Complainant was asked if she also believed that it suited the Respondent for her to be on parental leave and she replied that she did not know.  It was put to the Complainant that what was required to sustain her complaint of discrimination was evidence and not feelings or assumptions.  The Complainant stated that she felt it suited the Respondent at the time.  It was then put to the Complainant that what she was saying was not consistent with the protections of the Act, that is, that “it suited them to have me out”.  The Complainant stated that she could see the two sides of the argument.

It was put to the Complainant that the Respondent had no reason to take her on in the first place if they were of a discriminatory mind and her reasoning does not stack up and for that reason her claim is beginning to erode away.  The Complainant stated that she did not agree.

The Complainant was asked if she still felt that Ms Galvin and the Respondent took advantage of her and let her go when the time was up.  She agreed that she did feel that way.

Re - examination – the Complainant: 

The Complainant was asked what her status was when she continued to work on family access support.  She stated that she had a contract.  The Complainant was asked when she commenced the administration role and she confirmed that it was in August 2023.  She could not recall precise detail.

The Complainant was asked if the Respondent had any issue with her medical certificate at the time it was submitted and she confirmed that no issues were raised.

The Complainant was asked why, when she was locked out of work systems in November 2023, she did not pursue it at that time and she clarified that she was preparing to give birth at that time.

The Complainant was asked if she was told at the meeting on 5th September about the Respondent’s illness and that 22 staff were let go and she stated that these were never mentioned.

The Complainant was asked how she established that her pregnancy and having to avail of parental leave suited Ms Galvin. The Complainant stated that this was kicking the can down the road.  She locked her out of her work systems at that time.

Closing submission:

Mr Lars Asmussen, BL made a closing submission on behalf of the Complainant.

Mr Asmussen addressed two points that were raised on behalf of the Respondent. 

1.      There was an assertion that the Complainant was attempting to subvert or abuse the legislative process or framework by bringing a discrimination and pregnancy discrimination claim under the Employment Equality Act and not the Parental Leave Act.  It is not accepted that the Complainant should be prohibited from doing so. There is no prohibition on any employee bringing a pregnancy dismissal claim regardless of whether they also have a parental leave claim or whether the alleged discrimination took place prior to any leave, during maternity leave, during parental leave or indeed after the employee returns to work.  It is submitted that there is a lot of case law in which pregnancy discrimination complaints relate to events that occurred after an entire period of leave.  There is no statutory or case law that would prevent an employee from bringing a claim of pregnancy-based discrimination because they availed of parental leave. This would be akin to saying that an employee could not bring a claim of discriminatory dismissal simply because there is an unfair dismissals act in place or indeed vice versa.  The complaint in this case is about discrimination and not penalisation.

2.      The second issue raised on behalf of the Respondent was that a comparator must be identified in relation to all claims.  It was submitted on behalf of the Complainant that a comparator is not required in relation to pregnancy dismissal complaints. It was clarified that the family status ground was no longer pursued, and this is a single pregnancy complaint. 

There are two cases in the Complainant’s submission that confirm that position.  The first is the Dekker case (Dekker v Stichting Vorminsgscentruvoor Jonge Volwassen (JVJ-Centrum) C177/88 [1990] EUECJ R177/88) which held that discrimination on the ground of pregnancy was direct discrimination and confirmed that discriminatory acts relating to pregnancy are directly discriminatory on the gender and family grounds and that pregnancy cannot be compared to either sickness in a man or a non-pregnant woman.  This and the other case confirm that European case law has been applied to the issue of a comparator in pregnancy claims.

It is accepted that the initial burden of proof is on the Complainant to prove a prima facia case of less favourable treatment in relation to pregnancy and it is also accepted that it is not an automatic assumption. The definition of prima facie has been established in the case of Cork City Council v McCarthy EDA0821 and this is a useful standard: 

“At this stage the Complainant is merely seeking to establish a prima facie case.  Hence, it is not necessary for her to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proven facts.  It is sufficient that the presumption is within the range of inferences which can be reasonably drawn from those facts”.  

It is accepted that the Complainant must establish the primary facts and establish that one of the possible explanations regarding the treatment is discrimination.  Once that arises then the burned of proof switches to the Respondent.

It is submitted on behalf of the Complainant that the evidence has established a prima facie case. While there is a conflict in relation to the evidence there are five of pieces of evidence which has established a prima facie case and proof of discrimination.

1.      The first is in relation to the Complainant being locked out of the various work systems in November 2023 and the issues around that.

2.      The second is in relation to the broader temporal nature of this claim.   The Respondent has not explained the chaotic nature of the Complainant’s dismissal.  The evidence was that the automation process commenced in 2023.  This was at a time when the Complainant was being offered this contract and there was no precise evidence as to when the various parts of the implementation were occurring.  The only evidence was that it was occurring from 2023 onwards and the evidence that the “apocalyptic falling off the cliff” in terms of the available work and the financial implications which started in late 2023.  It was Ms Galvin’s evidence that this started in October 2023, and the financial implications were felt the following February and March.  The income reduced to €8,000 per month and then nothing in March. It would seem that the Respondent purports to justify the Complainant’s dismissal for those reasons.  The Respondent also claims that Mr D, who was in a similar role to the Complainant was dismissed in January/February 2024 and the Complainant was not dismissed until September 2024.  There was evidence submitted that there were ongoing discussions from July to late August 2024 between the Complainant and Ms Galvin.  These discussions are evidence of the continuity of the Complainant’s employment and the discussions about a contract of employment on her return to work.  At no stage during these discussions was there any indication that the Complainant’s employment was in danger.  She returns to work on 3rd September and two days later her dismissal takes place.  The Respondent has provided no evidence as what occurred within the space of those two days that would justify the decision to dismiss the Complainant.

Ms Galvin gave evidence that the reason the Complainant was kept on and Mr D was not was  that they hoped things would change.  There is no clear evidence as what changed in those two days to justify the decision.  It was submitted that the Respondent’s assertion regarding the temporal issue is chaotic and undefined and no justification as to what actually happened and why it happened that the Complainant’s employment went from being safe to being dismissed immediately.

3.      This dismissal lacked fair procedures.  It is common case that there were in fact no procedures at all.  The Respondent submits that because the Complainant was on probation there was no entitlement to any sort of fair procedures.  It is submitted that the Complainant’s legal position is that even though the probation period had not been passed there is still an entitlement to fair process on some level.  There was no fair process afforded to the Complainant.  The evidence is that the decision was made prior to the Complainant being put on notice and this unfairness is confirmed by Ms Galvin’s evidence that she was not aware if the Complainant could or could not perform a recruitment role.  This is a clear manifestation of the unfairness and there was no consultation or inquiry of any nature.  The decision was made and the Complainant informed and it is submitted that this is evidence of discriminatory intent and is prima facia evidence.

4.      There is a further point in relation to the decision to retain another employee, Ms R.  The Respondent’s evidence was that the decision to retain Ms R and dismiss the Complainant was based on two factors.  The first was that Ms R had a full-time role and she was involved in recruitment.  Ms Galvin’s evidence was that Ms R’s full-time role ended in March 2024 which was well in advance of the Complainant’s dismissal and therefore could no longer be an operative factor.  Similarly, Ms R was involved in recruitment mainly for the Ennis related work.  The evidence from Ms Galvin was that this work had effectively fallen off the cliff and slowed down in or around March 2024 so again this could not be an operative factor in the decision to dismiss the Complainant. In this context and although the Complainant was on probation, there is no evidence of any assessment, matrix or anything to justify the decision in relation to who was kept on and who was dismissed.  It is submitted that this is evidence of discriminatory treatment and a clear manifestation of the lack of fair procedures.  There was no engagement with the Complainant.

5.      The is a significant lack of documentary evidence.  The Respondent’s justification for the Complainant’s dismissal is the alleged apocalyptic falling off of work and also based on the introduction of automation in the business.  The Respondent has provided no documentary evidence in these proceedings and there was no evidence generated by the DSAR request.  The Respondent has provided no documentary evidence in relation to the loss of work and the automation that was occurring.

It was submitted that the Respondent was on notice in advance of the proceedings which were set out in the Complainant’s submissions that the Respondent was effectively being invited to produce documentary evidence on these non-discriminatory grounds, and they have failed to do so.  This lack of evidence is significant, and it is obvious that things like the apocalyptic loss of work stream and the automation of various work processes would by their very nature generate an amount of documentation but the Respondent has not provided anything. 

This lack of documentation is prima facia evidence of discriminatory intent.  It was submitted on behalf of the Complainant that the cases such as Trailer Care Holdings v Deborah Healy (EDA 128), the Devereux v Bauch and Lomb (DEC-E2005-020), and The Rotunda Hospital v Dr Noreen Gleeson (DEE 003 18 April 2000) all refer to the fact that a tribunal is obliged to look behind the assertion of any non-discriminatory reason and inquire into the real reasons for a person’s dismissal.  This is what the WRC is obliged to do, and the WRC can draw an inference from the lack of documentary evidence.

It was submitted on behalf of the Complainant that based on those facts a prima facia case has been established and also a presumption of discrimination and it is a matter for the Respondent to rebut this.  The case of Tresa Cross (Shanahan) Croc’s Hair and Beauty v Helen Ahern (EDA 195) discussed the burden of proof on a Respondent, and it makes it clear that mere assertions of non-discrimination on the part of a company are insufficient.  It must be back up with cogent evidence and this typically includes documentary evidence.  In this case the Respondent cannot rebut the presumption where there is a complete absence of any sort of documentary evidence.  The only evidence adduced was a “kind of moral evidence and assertions regarding non-discriminatory intent”.  In the absence of documentation and the need for same which was notified to the Respondent, they cannot rebut or defeat the presumption.

The Complainant is seeking compensation for the effects of discrimination perpetrated by the Respondent and on the higher end of the Adjudication Officer’s discretion.

Evidence – Ms Terri-Sue Cosgrave:

Ms Terri-Sue Cosgrave gave evidence on oath on behalf of the Respondent. She outlined that she is a provider of HR support to small and medium sized businesses.  She provided advice and support in relation to HR, Health and Safety, Procedures etc.  She confirmed that she is usually engaged on a retainer basis.  She had worked in HR roles for over 15 years and provided details of her qualifications.

She was initially engaged by the Respondent about three years ago to provide HR advice in relation to general HR.  This involved policy development, procedures and advice in relation to letting people go after the Tusla work ceased.  She confirmed that as a result of the loss of that work the Respondent was letting people go and her role was to provide advice in relation to policy and procedures.

In relation to the numbers let go, Ms Cosgrave noted that in November 2023 the business fell off the cliff and all their business was gone.  The Respondent had employed people for this work and she was only aware of the numbers based on a spreadsheet as she did not have direct involvement.

Ms Cosgrave confirmed that she had never met the Complainant prior to 05/09/2024.  She was involved in that meeting was because she was told by the Directors that the business was gone.  There was also a lot of automation due to GDPR, and they had to tighten up their processes.  The automation meant that when a worker or client needed to contact the Respondent this was now done through their website and did not involve calling the office.  Ms Cosgrave was asked if she was aware that the Complainant said in evidence that she and Mr D were doing the same work.  She stated that one of the directors shared with her the way the new website worked.  This director also attended the meeting on 05/09/2024.  Ms Cosgrave was asked if the Complainant was correct that she led the meeting.  She said that she introduced herself and explained her role and the purpose of the meeting.  The director spoke to the automation taking place.  She also recalled that the Complainant was given information in relation the downturn in the business and the automation process.  She was aware that the access work for families and children had a nation-wide remit and the Tusla work was Dublin based.  Ms Cosgrave confirmed that she was involved in the drafting of the Complainant’s termination letter of 05/09/2024.

Ms Cosgrave was asked about the Complainant’s assertion that her dismissal was relation to her second child, and she was asked if she had any concerns about discriminatory conduct on the part of the Respondent.   She stated that she was aware that there were many employees who had families that were also let go.  She stated that if she observed any discriminatory conduct she would highlight this and she would not work with any organisation who engaged in discriminatory practices as this would affect her professional reputation.

Ms Cosgrave confirmed that she has several clients throughout Ireland and these typically range in size from 4 to 1000 employees.  She is involved in employment rights and disputes and her role is to protect companies from making wrong decisions.  She confirmed that the Respondent in this case was receptive to her advice.

Ms Cosgrave was asked about what the risk was to the Respondent in view of the loss of Tusla work.  She stated that they were in trouble as they had hired people to do this work and they now had to respond to this significant loss of work.  Ms Cosgrave confirmed that it was her understanding that the Respondent bypassed private work in favour of the Tusla work.

Ms Cosgrave confirmed that the Complainant’s work came to an end during her probation. She also confirmed that either party can terminate the contract during probation.  She confirmed that there was no performance issued with the Complainant and that the Respondent could not keep employees on for a role that no longer existed.

Ms Cosgrave confirmed that there were an equal number of male and female employees let go at that time.  She had no information in relation to the family status of those who were let go.  She confirmed that the Complainant was given an opportunity to appeal the decision.  She did request additional information but she did not submit an appeal.

Cross examination – Ms Terri-Sue Cosgrave

Ms Cosgrave was cross examined by Mr Asmussen, BL, on behalf of the Complainant.  She confirmed that she was working as an agent of the Respondent.  She commenced working with the company early in 2024.  She provided general HR advice in the first instance.

Ms Cosgrave confirmed that the Complainant was informed of the appeal process on 5th September.   It was put to the witness that the Complainant sought additional information on 12th September, and this was provided to her on 15th September and at that stage the deadline had passed.  Ms Cosgrave said that there was no request for an extension or anything to say she would submit an appeal.  It was put to the witness that the Complainant’s letter asked for a full response before close of business on the 13th September but this did not happen.  Ms Cosgrave stated that she was not involved in that response.

Ms Cosgrave was asked about her role with the Respondent in January/February 2024 when the business reduced.  She clarified that they came to her for advice in early 2024.  She also confirmed that she was not asked any specific advice in relation to pregnancy leave and it did not arise in her discussions with the company and there was also no advice sought in relation to parental leave.  Ms Cosgrave confirmed that the Respondent advised her that the Complainant was on maternity leave and then parental leave.  She confirmed that she only knew the Complainant existed when the loss of business issue arose.  She stated that she only gives advice when requested to do so.  She believed that the Respondent told her about the Complainant possibly a week before she was due to return. Ms Cosgrave confirmed that she was aware of the employees who were to be let go and retained from a spreadsheet.  She also confirmed that she was not involved in any assessment in relation to who would be kept and who would be let go.  She had no knowledge of when this assessment was done.  Ms Cosgrave confirmed that she was not aware of the correspondence in relation to a new contract for the Complainant.

Ms Cosgrave did not know when the automation commenced but she was aware that a director was working on it for a few years.  She confirmed that she was aware that the administration role would be automated. Ms Cosgrave clarified that she provided no advice in relation to the email to the Complainant about the meeting on 05/09/2024.  She agreed that this email did not advise the Complainant of the nature of the meeting or that she could have representation.  She confirmed that she was copied on the email and was told about the meeting about two days previously.  Ms Cosgrave confirmed that the Complainant was given a lot of details at the meeting about the loss of the Tusla work and the automation project.  She agreed that no documentation was provided but the director who attended the meeting shared a lot of information.

It was put to the witness that there was no consultation with the Complainant prior to the meeting and she clarified that this was not a redundancy situation and so no consultation was required. The witness was asked why Ms R was retained and the Complainant was not.  She stated that it was her understanding that Ms R had a very different role.  The Complainant was asked if it was correct that the Complainant was dismissed with immediate effect and paid in lieu of notice.  She believed that question should be directed to Ms Galvin.

It was put to Ms Cosgrave that one of the arguments advanced on behalf of the Complainant is that the data access request did not disclose any information in relation to how the Complainant’s role was affected by the loss of the Tusla work and the effects of the automation on her role.  Ms Cosgrave stated that Ms Galvin would be the appropriate person to respond to that question.  Ms Cosgrave was asked if she was aware if the Respondent had prepared a labour matrix in relation to the loss of jobs.  She stated that this was not a redundancy situation.  Ms Cosgrave also confirmed that she had no knowledge of the automation software in place.

It was put to Ms Cosgrave that she heard the Complainant’s case that she was let go due to her pregnancy.  She stated that she would not allow that to happen.  It was a big decision to make and the Respondent did not make it lightly.

Redirection – Ms Terri-Sue Cosgrave:

Ms Cosgrave was asked when the termination letter was sent and she confirmed that it was on 5th September 2024.  She confirmed that the Complainant’s letter seeking additional information was received on 12th September 2024.  She agreed that this was a Thursday.  The Respondent’s reply was sent on 16th September 2024, and she agreed that this was a Monday.

Ms Cosgrave was asked about the letter of termination and the appeal procedure that was outlined.  She stated that it was her experience that an employee would normally set out their appeal and then seek any additional information that they may require.  Ms Cosgrave confirmed that the Complainant’s letter of 12th September was not an appeal. It was a series of questions about the reasons for her dismissal.

Ms Cosgrave was asked what her experience was in relation to people losing their jobs and if there was a difference between an employee on probation and not on probation.  She stated that the reason was not performance related in this case and the reason was solely due to the downturn in the business.

Ms Cosgrave was asked about the Complainant’s submission that the decision was made before the meeting on 5th September.  She stated that this was not a redundancy situation.

Ms Cosgrave was asked to clarify what she meant when she said that she would not allow a pregnancy related dismissal to occur.  She stated that she could not be aligned to such a practice.

In response to a question from the Adjudication Officer Ms Cosgrave confirmed that she is still engaged with the Respondent.

Evidence – Ms Felicity Galvin:

Ms Felicity Galvin attended the hearings remotely.  She gave evidence on affirmation.  She explained that she was a director of the company and she worked in the accounts department.  Her work involved invoicing and payroll.  She explained that another director built this business from scratch in 2008.  She explained that the company does not have an office as the access work is done nationwide and employees leave for their work from home.   The administration staff work from home.

Ms Galvin confirmed that the Complainant was initially employed as an access worker.  They geared up for the Tusla work in April 2022.  At that time, they were recruiting people as they were constantly looking for access workers nationwide.  The Complainant was recruited on 11/12/2022 and it was ad-hoc, which was if and when work was available and if it suited her to take it.  The system in place is that people are free to take or not take a particular shift.  There are no restrictions.  They only had to agree pay and with the Tusla work they were working on a budget.

Ms Galvin confirmed that the Complainant moved to an administration role in August 2023.  She told her manager, Ms T, about her pregnancy in May 2023 and she herself was told about the pregnancy by the other director in July 2023.

Ms Galvin was asked what her reaction was to the Complainant’s position that the Respondent provided her with a contract of employment knowing she was pregnant and she now says that Ms Galvin discriminated against her.  Ms Galvin stated that she was shocked to hear the Complainant say that.  She would not agree with or encourage any such discrimination.  She was always friendly and cordial towards the Complainant.   She would not have daily interaction with the Complainant and towards the end of her employment she had more interaction with her and this was in relation to payroll matters.  Ms Galvin was asked what she thought about the Complainant’s evidence that she and the other director did not like her due to her previous WRC complaint.  Ms Galvin said that she would disagree with that sentiment.

Ms Galvin was asked if she agreed that she sent a text message to the Complainant when she heard about her pregnancy.  She confirmed that she sent her a congratulatory text message and she explained that she done so because “it’s what I do”.  Ms Galvin confirmed that other employees also became pregnant and others took carers leave.  There was no discrimination at any time by the Respondent. 

Ms Galvin was asked how the Respondent ensures equality in the workplace and also in relation to the protected characteristics.   She stated that the Respondent is 100% pro equality across the board for any gender.  She is not a discriminatory person and she always has an open mind, she believes in the motto, “live and let live”. 

Ms Galvin was asked about the Complainant’s evidence that she accepted that there was no discrimination during her pregnancy and that the offer of two paid days off was perceived as an act of discrimination.  Ms Galvin confirmed that she was hurt and shocked at that assertion and confirmed that the first time she heard this was during the WRC hearing on 10/02/2026. 

Ms Galvin was asked about the Complainant’s view that it suited her to have the Complainant our and have no access to the work systems.  Mr Galvin said that they were transferring to an IR company and due to a glitch in the system some employees did not transfer.  It took between 3-4 months to have all the issues resolved.  Ms Galvin confirmed the name of the IT company and described it as a major project which was required in order to be more compliant with anything on the server including GDPR.  This project was a significant cost for the company.  Ms Galvin confirmed that when the business was going off the cliff, they had already signed the contract with the IR company.  The Tusla work ceased on 23/11/2023.  Ms Galvin said that she could illustrate the effect by stating that the company was receiving €56,000 in November 2023 and this went to €8,000 in February 2024 and it had completely dried up in March 2024.  Ms Galvin confirmed that they made efforts to have the Tusla work restored and to date they are still in contact and waiting for an update.  The Respondent received no work from Tusla since March 2024, and they had nothing to protect themselves when Tusla pulled the plug.  Ms Galvin confirmed that she had learned the need to have a contract in place and seek legal advice.

Ms Galvin was asked to explain the automation process.  She explained that the Complainant worked in a similar role to Mr D.  One of them was doing private clients and the other was assigned to the Tusla work.  Mr D was let go on 11/01/2024.  Ms Galvin said that this protected the Complainant for a number of months.  Ms Galvin agreed that she waited until the Complainant completed her maternity leave and parental leave before making a decision.  Ms Galvin said that she was unsure where the Complainant got the idea that it was her and not the other director who made the decision.  Her only interaction with the Complainant was in relation to payroll.  She confirmed that she was shocked and in disbelief at the Complainant’s suggestion which again she only heard at the WRC hearing for the first time.

Ms Galvin was asked about the lack of documentary evidence in relation to the loss of the Tusla work.  She stated that there was a lot of publicity about this in the media, in the Dáil, on social media.  Private clients and legal representatives were in touch with them after this.  The Tusla business went overnight, and this filtered down to their private clients.

Ms Galvin was asked what decisions were made in relation to the future viability of the company.  She explained that in November 2023 all shifts were cancelled.  They sent correspondence to access workers one month before Christmas.  There were 20/21 workers who they had no work for.  There were 30 access workers in reserve.

Ms Galvin was asked about the role undertaken by Ms R.  She explained that Ms R was working full-time in recruitment.  This involved placing advertisements and conducting interviews.  Ms Galvin was asked about the Complainant’s evidence that she was let go from a part-time role and Ms R was full time.  Ms Galvin stated that Ms R was working full time doing recruitment and another manager refused to do recruitment.  Ms Galvin explained that the recruitment was for a new contract involving about 100 families.  Ms R was qualified in HR.  Ms Galvin explained that the access workers and be transient in nature and the work is on an if and when required basis.  They were constantly recruiting when they had the Tusla work.  She also confirmed that approximately 90% of their access workers are female.  In the administration side there was one male and one female.  Ms Galvin confirmed that no female had made any discrimination claims. 

Ms Galvin confirmed that she was aware that the Complainant was pregnant in August 2023.  She confirmed that she never suggested to the Complainant or asked the Complainant how she could do her job with having a baby to mind.  She also confirmed that she was never concerned that the Complainant could be distracted.  Ms Galvin stated that she was aware of the flexibility that was there and she herself also works from home.   Ms Galvin agreed that she never scrutinised the Complainant while working her 16 hours and there was no requirement for her to clock in or clock out.  The working arrangement was based on trust.  Ms Galvin confirmed that the company is owned by the other director and she had no financial interest.

Ms Galvin was asked what decisions were made to try and preserve the company.  She said that they had to let people go in order to minimise costs.  They had spent money on the systems upgrade and this automated a lot of the manual administration work.  They decided to concentrate more on the private side of the work.  She confirmed that she only received one pay cheque in the past six months.  She confirmed that the company is still trading.  The administration staff have been reduced by 50% and Ms R was gone and there was one person in accounts gone.  The Tusla business has gone.  Ms Galvin said that this has taken an effect on her and no works can adequately describe what has happened.  Her family has suffered; she has sleepless nights and she had to endure the burden of financial strain.

Ms Galvi   was asked about the Complainant’s assertion that she (Ms Galvin) had embarked on a discriminatory journey with her as a woman and as a person with a young child.  Ms Galvin said that was a shocking assertion.  Ms Galvin was asked about the Complainant’s failure to remember who was on the call on 5th September and she stated that one would have to ask what is going on.  Ms Galvin was asked what her response to the Complainant’s evidence that her employment came to an end and the only reason it did was because of discrimination due to pregnancy.  Ms Galvin said that she did not agree with that, and she does not understand how the Complainant could come to that view.

Ms Galvin was asked what effect this had on her as a woman whose life was falling apart and trying to keep a business going.  She stated that no words were adequate.  There were three people involved in trying to chip away at her.

Ms Galvin was asked about the Complainant’s view that “she has a feeling and no evidence”?  Ms Galvin said that she has no idea where this could come from and it did not come from her or the other director.

Ms Galvin confirmed that she was not told that the Complainant had not filed an appeal by 12th September.  She stated that there was nothing in the Complainant’s letter of 12th September to indicate that she did not know what to do in relation to an appeal.  Ms Galvin said that there was no communication from the Complainant in relation to the appeal and if she had sought an extension of time they probably would have agreed to this.

Cross examination – Ms Felicity Galvin:

Ms Galvin was cross examined by Mr Asmussen, BL, on behalf of the Complainant.  She was asked if, when the Complainant commenced her administration role, if she continued to do some family access work.  She confirmed that she did and that this was ad hoc. It was put to Ms Galvin that the Complainant contacted her to say that she was locked out of One Drive files, rosters and report tracking.  She stated that they were transferring from one server to another and they experienced several glitches and these were genuine glitches.  It was put to Ms Galvin that the response from the Respondent on 16 September 2024 did not provide an explanation in relation to the IT issues.  She confirmed that the letter did not address those.  It was put to Ms Galvin that the failure of the Respondent to respond to the Complainant’s questions or to clarify why she was locked out of the systems undermines their credibility.  Ms Galvin stated that she could only surmise that the director was responding to the more pressing queries and not something that happened in November 2023.

It was put to Ms Galvin that the Complainant believes she was kicking the can down the road and this was disputed. In that case why was she not dismissed when her colleague Mr D was dismissed in January 2024.  Ms Galvin stated that they were hoping that they could have a job for her when she returned form leave.  They could not ask the administration team to take time off.

Ms Galvin was asked to explain her reference to a new contract when she was in contact with the Complainant by email on 22nd August 2024?  Ms Galvin said that these were two separate things.  The Complainant was not happy with a paragraph in her contract and this was to be revised.  It was put to Ms Galvin that her emails did not mention anything about the Tusla work or the automation.  Ms Galvin said that the Complainant was on parental leave and they were waiting to see if they could get things back.  She confirmed that the automation process started in 2023 and it was a long on-going process.   Ms Galvin was asked if the automation was a factor in the decision to dismiss the Complainant and why was there no reference to this.  Ms Galvin stated that they were hoping it would not affect the Complainant.  Ms Galvin was asked to explain Ms Cosgrove’s reference to a spreadsheet in relation to the assessment.  Ms Galvin clarified that there was no assessment.  The spreadsheet had information in relation to employees on their books.  If there was work available, they could take it if it suited them.  They had 50 people on their books and 20-30 of those were active on a weekly basis, others worked on a monthly basis and some worked every three months.  Ms Galvin also confirmed that 20 active employees were let go and they were advised that no work may be possible.  Following this there were a total of 15 staff including the three administrative staff.  Ms Galvin explained that the decision in relation to the administrative roles was that one person would be kept in accounts, another was an assistant manager and the third was, Ms R who was working in recruitment.  She stated that this was a progressive decision following ongoing discussion between herself and the other director.  They did not want to have to let anyone to go but if they had no work then they had no money coming in.

It was put to Ms Galvin that Ms Cosgrove’s evidence was that the other director had made the decision in relation to the Complainant in advance of the meeting on 5th September.  Ms Galvin said that she could not agree that the decision was made in advance but she could not be sure when it was made.  It was put to Ms Galvin that her emails to the Complainant on 17th July 2024 and 21st August 2024 are indicative of her employment continuing and therefore what happened that caused her dismissal on 5th September 2024.  Ms Galvin said that the Complainant was continuing as an active worker up until that date.  It was put to Ms Galvin that fair procedures such as advanced notice and representation were not followed and she was asked to clarify if it was the Respondent’s position that because the Complainant was on probation that fair procedures did not apply.  She confirmed that was the position.

It was put to Ms Galvin that there were two factors involved in the retention of Ms R.  The first was that she worked full time and the second was that she worked in recruitment.  Ms Galvin said that Ms R was hired to work in recruitment in October 2023.  She said that the recruitment aspect was more of a factor rather than the fact that she worked full time.   Ms Galvin was asked why the Respondent was retaining the recruitment person if the lack of business was an issue and why did they not ask the Complainant if she wanted to work in recruitment.  Ms Galvin said that she was not involved in making that decision.  Ms Galvin confirmed that the Complainant was offered a return to family access work post dismissal.

Ms Galvin was asked to clarify what was referred to as the Ennis work.  She stated that this commenced around October/November 2023 and if they still had been engaged by Tusla this work would also be ongoing.  This work ended in March 2024.  Ms Galvin was asked why Ms R was retained if the recruitment for the Ennis work was gone in March 2024.  She stated that Ms R was retained as she was recruiting access workers on a nationwide basis.  It was put to Ms Galvin that the Complainant could have been offered that work.  Ms Galvin stated that the other director would have looked at the Complainant’s CV.  Ms Galvin clarified that she is now the only person working in accounts.

Ms Galvin was asked about the automation issue.  She identified the software involved and explained that their system is now web based.  Clients and staff, including administration staff, log on.  This allows staff to make submissions and upload their reports.   The client intake form is now online and all that process is now automated whereas it was previously done by the administrators.  She confirmed that the change was introduced slowly and was in place at the end of 2023 and early 2024.  Ms Galvin confirmed that she was not aware of any discussion with the Complainant in relation to automation prior to the meeting on 5th September.  Ms Galvin was asked when the moment was that they decided to dismiss the Complainant.  She stated that it was at the meeting on 5th September, but she was not present at that meeting.

Ms Galvin was asked to explain why the data assess request which the Complainant made post dismissal contained no documents or any evidence that would confirm that the Complainant’s role was automated or that her role was gone due to the ending of the Tusla work.  She explained that any personal information has to be returned, and all emails were provided to her.  She does not know what report the other director provided but she does not recall having any conversation with the Complainant about automation.  It was put to Ms Galvin that the lack of any documentary evidence from the Respondent in relation to the loss of the Tusla work or the automation process undermines the position that the Complainant’s dismissal was due to those factors.  Ms Galvin said that she would not agree.  It was put to Ms Galvin that the fact and manner of the Complainant’s dismissal was due to the fact of pregnancy and parental leave.  Ms Galvin said that she would totally disagree with that statement.

Redirection – Ms Felicity Galvin:

Ms Galvin was asked why the Complainant was dismissed and not Ms R and if he was possible to support two people doing that job.  Ms Galvin said that they could not support that.  Ms Galvin also confirmed that the Respondent had no need to transition someone from an administration role to a recruitment role and have two people working on recruitment.  She stated that they could not and the fact was that there was not enough work there.  Ms Galvin also confirmed that the Complainant was on probation at that time while Ms R was not.

Ms Galvin also confirmed that the recruitment hours were cut in half so why was the Complainant not moved at that time.  She stated that would not make sense and it would not be logical to cut the hours and then put someone else in the area.  Ms Galvin was asked if she had any idea why the Complainant was so fixated on Ms R.  She stated that she had no idea why and did not understand why this was so.

Ms Galvin confirmed that the Ennis contract commenced in October 2023 and ended in March 2024.

Ms Galvin was asked to clarify the nature of the transient hours.  She stated that the access workers can work on a daily or weekly basis.  This depends on the Court order which grants this access.  They work on an if and when basis and there is a constant roll over of access workers and for that reason there is ongoing recruitment.

Ms Galvin was asked why the Complainant was not advised or put on notice in July 2024 that her job was at risk.  She stated that they were hoping to be in a position not to let her go.

Ms Galvin was asked if the overarching reason for the Complainant’s dismissal was the fact that the Respondent had no money.  She confirmed that that was the truth and she believes that the Complainant does not want to hear that.  She was asked if there was an overnight shift in their position in relation to the Complainant from 2nd to 5th September.  She stated that the fact was that things had not changed in relation to the work that was no longer available.

It was put to Ms Galvin that the Complainant previously took a case to the WRC in relation to a miscalculation of her holiday pay and what would have happened if she was not paid this.  Ms Galvin said that she would have expected to be in the WRC again.

Ms Galvin confirmed that the IT system is implemented and aspects of it are ongoing.  She also confirmed that she is now the person who makes any call backs to clients in relation to fees and an assistant manager makes any access related calls.  There is no direct contact between the client and the access workers as far as she is aware.

Ms Galvin was asked if the Complainant ever put her on notice that the Respondent was in breach of the data subject access request.  She confirmed that she never did but she had an email from the Complainant which actually said the opposite.  Ms Galvin stated that she had no idea why the Complainant had an expectation that matters not personal to her should have been provided in the access request.

Closing submission:

Mr Byrnes, BL, made a closing submission on behalf of the Respondent. In relation to the preliminary matters dealt with in the closing submission on behalf of the Complainant, Mr Byrnes noted the complaint was filed with the WRC on 18/02/1025 and the termination of the Complainant’s employment took place on 05/09/2024 so the cognisable period is from 18/08/2024 up to 17 or 18/02/2025.  The Complainant stated on her complaint form that the last date of discrimination was on 09/09/2024.  It was submitted that this is confusing because there was no evidence in relation to anything that occurred on 09/09/2024.

It is not disputed that the Complainant was contracted to work two days per week and was paid €16.00 per hour or a gross weekly wage of €224.00.  It was submitted on behalf of the Respondent that this could be described as “a very modest case” and a lot of work has going into it from both sides with legal representation and several hearing and remote hearing days.  It is noted that the Complainant has accepted that this is a probation case.  When the Complainant’s statutory and sick leave are factored in then it is clear that the Complainant was still on probation when her employment ended. It was submitted that this is the prism through this case must be properly considered. 

It was submitted on behalf of the Complainant that there were no fair procedures.  It is the Respondent’s position that this is not merely a question of entitlement.  There is no legal right to fair procedures during a probationary dismissal.  The Complainant’ representative did not rely on the Braganza principles which were adopted form the UK Supreme Court in the O’Sullivan v HSE [2023] IESC 11 and it is submitted on behalf of the Respondent that in this case the Respondent had a contractual discretion and that is essentially what a probation period is.  Such discretion must be exercised in a reasonable manner and the context at the time of the dismissal.  In this case the Respondent had to decide whether they could sustain the Complainant’s employment given the circumstances that then existed.

Mr Byrnes noted that there were submissions on behalf of the Complainant in relation to what was not in the correspondence issued to her such as the fact that she could have a colleague or trade union attend the meeting or that no advance notice of the dismissal was given.  What is important is the context and the Complainant was returning to work from parental leave which is a period of protected leave.  The Complainant was given two paid days off and she interpreted that gesture as an act of discrimination.  The Complainant singled our Ms Galvin as the person who perpetrated that act of discrimination and she submitted that Ms Galvin waited in the long grass for that opportunity.  The Complainant gave evidence that to terminate her employment Ms Galvin had a discriminatory mind and intention and waited for the opportunity to terminate the Complainant’s employment.  It would appear that the Complainant is suggesting that the decision was taken, possibly in December 2023, and that’s when the discrimination started and it is submitted that there is no reality to that proposition.

It is also unreasonable to perceive that a reasonable and kind gesture by an employer who is having technical issues with their IT system could be perceived as an act of discrimination.  While the Respondent did not provide reams of paper, Ms Galvin gave unequivocal evidence about the IT systems, and she was able to explain such matters.  The Complainant did not call any witnesses from the company to give evidence although she had people lined up initially including her then manager, Ms T.  It is understandable that the Complainant is unhappy that her job ended and so also is Mr D who attended these hearings remotely and he is represented by the same legal representatives.  It is important to note that these people are showing up at each other’s hearings but are not willing to give evidence and be cross examined.

It is important to ask what is going on in relation to these matters.  The Respondents directors are in the later stage of life and their careers and livelihood has collapsed.  The Complainant and her colleagues were employed to assist with the expansion of the business and what happened was beyond the capacity of the Respondent to deal with. The Complainant and her colleagues were wanted by the Respondent to work for them.  They invested in better facilities with enhanced digital services and while doing so the work collapsed, and this was occurring in a micro business.  Ms Galvin gave clear evidence that the learning for her from this was that she needed to have a contract in place.  The Respondent obtained work from a state body without a procurement process.  The Respondent was providing the service which was required by court order in relation the children who could not see their parents pursuant to a court order and facilitated by professionals employed by the Respondent.

The Complainant made an initial complaint for penalisation under the Protective Disclosures Act but no complaint was brought under the Parental Leave Act even though the Complainant said that when she took up her parental leave, she suffered discriminatory acts when she was given two additional paid days off.  There was a week between the end of the Complainant’s maternity leave and the commencement of her parental leave but there awas no queries from the Respondent asking the Complainant what was going on.  What was going on was that Ms Galvin was assisting the Complainant with her application to the department of social protection for the pay that she would have received.  It is submitted that the Complainant may have been financially better off with the statutory pay rather than her usual €224 per week but there was nothing said about that by the Complainant.  The Respondent was happy to agree the leave because she is entitled to it and it suited her.

Mr Byrnes noted that the Complainant already had a young child and she was offered a new contract of employment rather than the previous loose ad-hoc arrangements and she said that she was delighted to get this job as it suited her, her work life balance and the fact that she could work from home.  It is not realistic that she would see the Respondent as discriminatory minded in view of this.  She also always continued with her access work and there was no one micromanaging her or doing any daily checks on what hours or work she was doing.  There is an inconsistency in the Complainant’s case where she believes that the Respondent took advantage of a pregnant woman with her second child and she is told that she has a job that allows her to work from home two days per week and work whatever way it suited her.  This job was offered with both sides aware of her situation.  She has not made any complaint of penalisation under the Parental Leave Act.  When she was asked in cross examination why she had not done so she stated, very fairly, that she was not penalised for taking her statutory parental leave.

The difficulty that this poses for the Complainant is her lack of consistency.  She alleges that Ms Galvin held a discriminatory mind towards her and her representative referred to discriminatory intent.  That means that the case is run based on intended discrimination and not unconscious discrimination and that also means that it is a targeted discrimination case.   This is where her case now comes apart on a prima facia basis.  To suggest that Ms Galvin, or anyone else from the Respondent, has a discriminatory mind when it comes to pregnancy, but does not when it comes to the taking of parental leave for the very same woman who gave birth to that child and taking time off to be with that child is not realistic.  The Respondent employed the Complainant when she was several months pregnant and were aware of that.  There was evidence that Ms Galvin sent a warm congratulatory text message who stated that she sent it because that’s what she does.  Ms Galvin also gave evidence that she is a mother of two herself and although older she continued working and deal with the realities of live and that you do your work when you can and make up any hours when you can.  This is her attitude and explains why there was no micromanagement.  There was no evidence in relation to whether this pregnant Complainant was doing her job or dealing with matters relating to her pregnancy or whether any such matters might prevent her from doing her job in such a way that would disadvantage the Respondent, clients, customers or courts. 

The Complainant was doing access work from May 23 and administration work from August 23. The Complainant’s evidence was that there was no discrimination towards her during her pregnancy other than the 2 days of paid leave. The Complainant’s core case is that she had perceived her dismissal on 5th September as an act of discrimination and is within the cognisable period.

It was submitted on behalf of the Respondent that the simple act of pregnancy is not enough to raise the inference under the legislation because the dismissal occurred after pregnancy and after the maternity leave.   It is also accepted on behalf of the Complainant that she bears the prima facie burden. When the context within which the Complainant is seeking to establish a prima facia burden it does not get off the ground.  The Complainant’s representatives made a submission that a comparator is not needed, but in in the written submissions prepared by the Complainant’s legal team, they have referred to cases in which it clearly states that when it comes to unequal treatment.  This is the reality you must face in such claims.  You state that I was unequally treated because of my specific protected characteristic compared to somebody else who does not have that specific protected characteristic. That is enshrined in Section 6 subsection one of the legislation. It is a comparison. Equality law has always been a comparison. A comparator may not be needed when a woman is pregnant.  This is not a case of pregnancy discrimination. No discrimination was identified as taking place within the cognisable period whilst the Complainant was pregnant.   This raises several questions: 

• How can you discriminate against a woman for having a child when she accepts that you haven't discriminated against her for already having a child?
• How can you discriminate against a woman for being pregnant when you gave her the job knowing that she was pregnant?
• How can you discriminate against a woman when she's accepted, that there's no evidence of any discrimination occurring during the pregnancy during the cognisable period?
• How can a woman perceive two paid days off while there are technical glitches with the systems ss being discriminatory.

The reality is that the Complainant had has perceived it and assumed that this was targeted. There was no evidence to support this.  The Complainant’s case is based on assumption after assumption.  The test in this case is a reasons-based test, and this is a factual exercise and not a legal causative test.  The Adjudication Officer must ask what the reasons in the mind of the discriminator or alleged discrimination were and what are the reasons for the dismissal.  It was submitted that the questions to be answered are was the dismissal genuine, it is weighty, is it probative and does it stack up and does it make sense when the context is taken into consideration.

The Complainant has only identified Ms R as the comparator.  There is something of an obsession or fixation in relation to Ms R but there was no evidence in relation to any conflict with the Complainant.  There were no inappropriate emails or anything that could raise inferences.  The fact is that Ms R was working away on the recruitment work and her hours were reduced and Ms Galvin’s evidence was that this reduction was from 30 hours to 15.  The suggestion that there was an obligation to look for alternative work for the Complainant in recruitment at a time when the person working there had her hours cut in half does not stack up. To suggest that the Complainant ought to have been assessed for some other recruitment role and to criticise Ms Galvin for not even asking is unfair.  There was nothing to say that she had recruitment experience.

It was submitted that the Complainant and her legal advisors have run this case as if it's a redundancy case, when quite there was no redundancy.   It would seem that the Complainant and her representatives were not aware that this was a dismissal that occurred during probation.   This was confirmed by the Complainant cross examination, when she effectively accepted that she only learned this during these proceedings.

It was submitted that if the Respondent continued trading knowing that it is insolvent or about to become insolvent and not exercise their duties as directors to take reasonable measures to prevent a company from going into that situation, especially where there might be creditors they could be struck off and subjected to legal proceedings. Letting staff go was done in a reasonable manner and there was evidence given in relation to the numbers involved. 

The actual comparator in this case should have been Mr D who made a complaint to Tusla without thinking about the consequences.  It was the Complainant’s evidence that she and Mr D were doing the same jobs.  Mr D made a complaint about the process he and the Complainant were responsible for.  Mr D’s job went in January 2024 and by comparison he is a man and does not have a protected characteristic and he was treated the very same as the Complainant.  It could be argued that the Complainant was treated better as she was not dismissed at the same time as he was. 

Ms Galvin’s uncontested evidence was that she was hopeful that they could keep the Complainant on, and the Respondent is criticised for doing so. The law does not prevent a dismissal during pregnancy or during their return from protected leave.  The law outlaws discrimination.  The Complainant could have been advised that she may no longer have a job, but they held out for as long as possible.  It is not credible to say that there was a foregone conclusion before they met with her.  The Respondent had to make decisions to protect the company, and these decisions were consistent with directors who are committed to trying to keep this company on its feet for as long as they can. Evidence was heard in relation to the fact that Ms Galvin has not been paid for about 6 months and this along with other personal sacrifices is what a micro enterprise such as the Respondent has to do in these circumstances.

It was submitted on behalf of the Respondent it was not credible for the Complainant to say that she did not know anything about what was going on with the Respondent.  Her former colleagues Mr D and Ms T have been showing up to her proceedings and she to their proceedings.   It is the Respondent’s position that one must be very cautious about what is going on.  Ms Cosgrave also gave forthright and professional evidence in relation to her involvement with the Respondent.  She gave evidence that she would not associate herself with anything that would put her reputation on the line or be part of anything that could be seen as some kind of discriminatory act.  The company is now down to the two directors and one person in accounts. This is happening while they are trying to retain access workers around the country.  It is not necessary to have a volume of documents to confirm this undeniable evidence.  It was always open to the Complainant do seek a direction to produce documents to assist in making their prima facie case.  The data subject access request was complied with and there was no criticism in that regard.  It does seem that the Complainant was seeking to discover something of a silver bullet which would show that there was no need to dismiss the Complainant other than for discriminatory reasons.  The facts surrounding this case are undeniable.  The downturn started and continued, and the directors could do nothing about it.

It is the Respondent’s position that the Adjudication Officer must take into consideration

the issue of the Complainant’s credibility and in this case, lack of credibility.  The Complainant has shown a lack of credibility in the world of assumptions that she lives in.   It was also remarkable that the Complainant could not remember who was logged on at the remote meeting on 5th September. She could remember that Ms Cosgrave, a person she never met before, but could not remember if Ms Galvin was on the call.  The Complainant also did not present as an aggrieved person who was badly damaged because of the alleged terrible discriminatory conduct.  The Complainant was very blasé, very easy going and very assuming – a fact that she admitted in cross examination.  She could not remember many important details such as what days she usually worked, her start and finish times, her probationary period – she stated 3 months and then changed to 6 months on reviewing her contract. She thought that she was offered three days paid leave and only stated that this was a discriminatory offer during her cross examination.  The Complainant also gave evidence that she was offered no appeal of her dismissal but the document provided to her stated otherwise.  The appeal period was seven days from the date of dismissal which is the norm. Her letter of 12th was a revisit of issues relating to November 2023 and her response was issued on the following Monday although it was suggested that it took four days for a reply to issue.  The fact remains that the Complainant did not make any appeal or did not seek an extension of time which Ms Galvin said would be looked on favourably.                                                                                                                                                                                                                                                                                                                                                                                                                      

The Respondent’s clear and unambiguous position is that the core reason why the Complainant was no longer able to stay employed is because there was no money and you cannot have someone come back to work for no money.  Ms Galvin’s testimony confirmed that.  It is also important to note that the Complainant previously took the Respondent to the WRC in relation to a misunderstanding in relation to a pay issue which was resolved.  It is most unusual that, an employer who is potentially facing insolvency, is criticised for holding out for as long as possible before telling an employee that there is no job for them.  The Complainant has failed to appreciate what might have happened her statutory benefits had she gone to the Department of Social Protection and told them that she was now unemployed. A person does not get maternity benefit if they are out of work and maternity benefits are not means tested.  The Complainant’s benefits could have been removed or put in jeopardy id the Respondent did not facilitate her by keeping her on for as long as they could and see if they could recover the Tusla business and get further private work.  The Complainant seems to be suggesting that by doing so they were discriminating her. 

The case of Minaguchi v Wineport Lakeshore Restaurant [DEC-E202-020) discussed the burden of proof and it states as follows:

“It appears to me that the three key elements which need to be established by a claimant to show that a prima facia case exists are:

(i)               That she is covered by the relevant discriminatory ground(s)

(ii)              That she has been subjected to specific treatment and

(iii)            That this treatment is less favourable that the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

In relation to (i) the Complainant is covered and

(ii) in this case the allegation is dismissal and

(iii) it is comparative.

This case has not been run on the basis of an unconscious act or non-acts of discrimination.  The word used was “intent” and the Complainant’s evidence was that Ms Galvin was waiting in the long grass to dismiss her.  The reason the Complainant was not told in July that her role might be at risk was that could be identified as an act of discrimination which would put her benefits at risk.  It was submitted on behalf of the Complainant that the connection between the discriminatory ground and the alleged discriminatory acts is not to be established by way of motive or intention, but rather from objective facts infer discrimination.  This was captured in the case of A Technology Company v A worker EDA0714.  

There was no evidence adduced from the Complainant or Ms Galvin or anyone else having an unconscious mind or have strayed into the realm of discrimination without realising it.  There was no evidence challenged on the basis that this case involved intentional, deliberate and conniving discrimination which occurred over a period of time in order to maximise the Complainant’s time on absence for maximum advantage.

This case can be succinctly summarised by confirming that the reason for the dismissal was that there was no money to pay the Complainant.  There was no redundancy and there were no selection criteria.  The Respondent held out for as long as they could to see if they could retain the Complainant in employment.  She was treated more favourable than her natural comparator, Mr D.  She received the benefits for her time on protective leave, and she would have received more money during that period than she would have while working.  The written submissions create the impression that the Complainant’s life was turned upside down as a result of her dismissal but there was no evidence led in this regard.  When this was raised with her during cross examination she gave evidence that she is in fact a full-time stay at home mother who is not looking for work.  There was no performance or conduct issues associated with her dismissal and therefore it is not credible for the Complainant to state that she was embarrassed to tell people why she was let go.  She did not seriously look for work.

The Respondent had to make decisions, and the Respondent has outlined many acts of anti-discrimination that undermine the Complainant’s position.  Fair procedures were applied and her queries were addressed and she made an issue about not getting a detailed reply to an IT issue in November 2023.  This was a fair and reasonable exercise by the Respondent of its contractual discretion to let the Complainant do.  The reality that it was not discretion alone – it was forced upon them by virtue of the fact that a lot of other people lost their jobs including the person who was doing the same job as the Complainant.

This complaint should be dismissed as it is  not a case of discrimination on the grounds of pregnancy or anything related to pregnancy.  The Complainant’s case is built on stilts – stilts of assumption.

CA-00069372-002:  This complaint was withdrawn in the Complainant’s written submission and confirmed at the hearing on 06/08/2025.

CA-00069372-001:  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 18/02/2025.  In her complaint form she alleges that she was discriminated against on the basis of her gender and family ground and she is seeking redress in the form of compensation.

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 by the Respondent because her gender and family status.  The family status was withdrawn during the course of the hearings.

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.

The Complainant provided the hearing with a submission which provided a narrative of events since her employment commenced on 11/12/2022 up to the date of her dismissal 05/09/2024.  As her complaint was submitted to the WRC on 18/02/2025 the cognisable period is from 24/08/2024 to 18/02/2025.

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 her dismissal was linked to her gender. 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 Respondent’s witnesses gave clear, cogent, and consistent evidence that the dismissal occurred against the backdrop of a significant business crisis which necessitated urgent measures to preserve the viability of the enterprise. I accept that evidence without reservation. It was common case that the Complainant was on probation at the material time. Her assertion that she was unaware of this status, or that it played no material role in the decision-making process, is wholly unconvincing and does not displace the Respondent’s credible explanation. 

Considerable emphasis was placed on the alleged absence of documentation concerning the loss of the Tusla work and the associated automation project. However, it was expressly confirmed in evidence that the Tusla work had been awarded to the Respondent without any public procurement process having been conducted. In those circumstances, the criticism directed at the Respondent regarding the absence of documentation is fundamentally misplaced. Where a contract is awarded in the absence of any formal procurement process or accompanying documentation, it follows as a matter of logic that there will be little, if any, documentary record surrounding either the commencement or the subsequent termination of that work. The lack of documentation is therefore not indicative of any failing on the part of the Respondent but is instead a direct and predictable consequence of the manner in which the work was originally awarded.

In relation to the absence of documentation concerning the automation project, it would have been of assistance to the Complainant if any of the briefing documentation ordinarily associated with such a project had been produced. Such material would typically outline the nature, scope and anticipated consequences of the work and would have assisted in understanding the implications of the project. In the absence of such documentation, there was limited material available to inform that assessment. I note the Respondent’s evidence that its website is said to demonstrate the outcome of the automation project.

The Complainant’s evidence was marked by inconsistency and conjecture. She gave evidence that she had successfully passed her probation and then in cross examination agreed that she was still on probation at the time of her dismissal.  She also gave evidence that she was unaware of the issues facing the respondent and then confirmed that she was not only aware that two of her colleagues were dismissed due to the difficulties, but she had agreed to be a witness at their hearings.  

The Complainant gave evidence that she was invited to a meeting on 05/09/2024 and had no idea what the purpose of the meeting was, but despite being on sick leave, she felt it was important to attend as she “has a feeling what it might be about”.  She gave evidence that she was unaware of why her colleagues were let go. The complainant placed a lot of emphasis on the fact that Ms R was retained in employment and felt this was unjust as she was employed after her.  She did not take into account that Ms R’s role was specifically recruitment based, and this was different to the role that she had.   It is also ambiguous that the Complainant specifically singled out Ms Galvin as the person she alleges discriminated against her.  Ms Galvin was not at the meeting on 05/09/2024 and the Complainant has, in her own words, made assumptions in relation to the motivation of Ms Galvin in giving her two paid days off.  It is difficult to evaluate the complainant’s acrimony towards Ms Galvin and her total lack of any displeasure with her colleague whose actions resulted in the loss of the Tusla work.  As noted earlier the Complainant confirmed that she has agreed to be a witness for this colleague in his WRC proceedings.

The complainant in her evidence stated that she was not given any opportunity to appeal the decision to dismiss her and she had no clue how to do this.  In cross examination she accepted that the letter of dismissal outlined the process, and she did not pursue this option.  The Complainant also failed to provide any satisfactory explanation for her decision not to invoke or comply with the internal appeals procedure. This significantly undermines the reliability of her account. She did not dispute that 22 other employees lost their employment following the loss of work that precipitated the Respondent’s financial difficulties. Against that uncontested factual matrix, it is a strained and improbable proposition to suggest that she alone was dismissed by reason of her gender, while the remaining employees were dismissed solely for financial and operational reasons. No persuasive evidential basis was advanced to support such a contention.

All of this sits uneasily with her attempt to portray herself as unaware of the broader circumstances within the organisation at a time when colleagues were being dismissed and when she was identified as a potential witness in some of their WRC proceedings. That portrayal lacks credibility.

Finally, the Complainant’s contention that no comparator was required in the circumstances of this case is legally unsustainable. It runs contrary to well-established principles governing the burden of proof in discrimination claims and reflects a fundamental misapprehension of the applicable legal principles.

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 gender. 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.

CA-00069372-001:  Having carefully considered the written and oral submissions of both parties, together with the evidence adduced at the three hearing days, I find that the Complainant has failed to establish a prima facie case of discrimination on the ground of gender, contrary to the Employment Equality Acts 1998–2015.

In particular, I am not satisfied that the facts presented give rise to an inference of discrimination sufficient to shift the burden of proof to the Respondent. Accordingly, I find that the Complainant has not discharged the evidential burden required to demonstrate that the Respondent discriminated against her on the ground of gender.

For these reasons, I determine that the Respondent did not discriminate against the Complainant within the meaning of the Acts.

CA-00069372-002:  Complaint withdrawn in the Complainant’s written submission and confirmed at the hearing on 06/08/2025.

Gender discrimination.  Prima facie.