Complainant

Respondent

Parties

Aleena  Starshine

Craoibhin Community Enterprise Centre

Representatives

Garvan Gallagher Boyd HR

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-00070614-001

07/04/2025

The Complainant alleges that she was discriminated against on the gender ground. The Respondent argued that the Complainant’s employment was terminated because she did not pass her probationary and for no other reason.

Aleena Starshine took the affirmation and gave her evidence as follows:

The Complainant started in the 7th November. There were no issues on the first day. Then a few days day later she was called into the office and told that a complaint had been made to Tulsa. She was suspended on full pay pending an investigation. The second complaint was made on the 14th November but the Complainant wasn’t told about it at the time. On the 3rd December she was told that Tulsa were investigating the matters. She didn’t find out what that specific complaint was until the investigator called her.

There was a 3 week gap between her suspension and receiving the official notice of suspension. She was kept on full pay until February 2025. At that time there was a probationary meeting. There was a probationary clause of six months in the contract.

As part of the investigation, they didn’t answer any of the questions that the Complainant needed answers to. Delay, GDPR queries were all left unanswered. The letter in the original complaint is highly suggestive of gender discrimination. The author of that letter was Elaine Mc Garvey. She is the mother of a child who uses the Respondent’s service. She was the mother of the child who was offered a free kiss.

 In relation to the handover issue, the Complainant went to work on the first day and had not been trained or been given the policies in relation to handover. This was in the school across from the creche. The children themselves identified their parent, grandparents etc and they were then handed over to them. That complaint wasn’t notified to the Complainant until 3rd December. Other staff members did the same thing, but they were not investigated or suspended.

The policy and procedures booklet was never given to the Complainant.

There are a few holes in the Respondent’s submissions.  

Garvin Gallagher took the oath and gave his evidence as follows:

The Respondent is a long-established, community-based childcare provider operating both a crèche and after-school service in Termon, Letterkenny, County Donegal. The service operates under the governance of Craoibhin Community Enterprise Centre (Comhlacht Forbartha An Tearmainn). The organisation provides childcare and after-school support services to local families and places considerable importance on maintaining a safe, supportive, nurturing, and trusted environment for children in its care. Central to its operation is the preservation of parental trust and confidence. As a relatively small community organisation, the Respondent stated that it attaches significant importance to safeguarding standards, professionalism, and the maintenance of clear boundaries between staff and children. It operates in accordance with childcare regulations, safeguarding obligations, internal policies, and Children First responsibilities. Staff are expected at all times to exercise sound professional judgement, maintain appropriate boundaries, and demonstrate safeguarding awareness. The Respondent asserted that concerns relating to safeguarding or professional standards must be addressed immediately in order to protect children, maintain public confidence, and preserve the integrity of the childcare service. The organisation employs individuals from a diverse range of backgrounds and serves a broad section of the community. It stated that all policies and procedures are applied equally to employees regardless of any protected characteristic.

The Respondent strongly rejected any suggestion that the Complainant was subjected to discrimination, less favourable treatment, or termination of employment on the basis of gender identity or any other protected ground. The Respondent’s position was that the Complainant’s employment was not continued following a probationary assessment due to concerns regarding professional judgement, safeguarding awareness, and overall suitability for work within a childcare setting. It was submitted that disciplinary procedures were never invoked and that the decision not to continue employment was lawful, proportionate, and unrelated to gender identity. The Respondent emphasised that the Complainant had been recruited with full knowledge of their gender identity and maintained that this characteristic was never a factor in any employment-related decision.

The Respondent stated that one of the principal safeguarding concerns arose from the Complainant’s decision to release a child to an adult without conducting what it considered to be appropriate verification of the person collecting the child. It was submitted that responsibility for this handover rested solely with the Complainant and that no other staff member was present at the relevant time. Reliance was placed on a complaint made by a parent identified as HK, who stated that only the new staff member was present during the handover. The Respondent argued that safeguarding responsibility attached to the staff member supervising the child at that moment and that any employee acting in the same circumstances would have been treated identically. Consequently, the Respondent submitted that there was no valid comparator, no evidence of less favourable treatment, and no factual basis from which discrimination could be inferred.

The Complainant commenced employment on 7 November 2024 and remained on probation throughout the duration of employment. The Respondent stated that within four days of the Complainant beginning employment, two separate and independent parental complaints were received concerning matters relating to safeguarding and professional judgement. The first complaint related to a comment allegedly made by the Complainant during a children’s activity in which a child was reportedly offered “a free kiss from me” as a prize. During the subsequent investigation, the Complainant accepted that the comment had been made. The Respondent argued that regardless of intent, such a statement was objectively inappropriate within a childcare environment because childcare workers are required to maintain clear professional boundaries and avoid behaviour or language capable of creating discomfort, misunderstanding, or inappropriate interpretation. Reference was made to safeguarding guidance which states that physical affection or references to it must be appropriate, child-led, and necessary. The Respondent considered the comment to fall outside acceptable professional standards.

The Respondent stated that it was particularly concerned by what it viewed as the Complainant’s inability during the investigation process to appreciate or understand why the comment was problematic in a safeguarding context. It considered this absence of insight to be incompatible with the safeguarding standards and awareness expected of an individual working within a childcare setting.

The second concern related to the release of a child during collection arrangements without what the Respondent considered to be proper safeguarding verification procedures. It was stated that no other staff member was present during the handover and that the Complainant did not accept that any safeguarding issue arose, instead characterising the practice as normal. The Respondent referred to National Child Safeguarding Programme guidance concerning supervision arrangements, lone working, and child handovers. It maintained that releasing a child without verification created an inherent safeguarding risk. The Respondent further submitted that the Complainant’s failure to recognise this risk reinforced concerns regarding professional judgement and safeguarding awareness.

The Complainant was subsequently suspended on full pay as what the Respondent described as a neutral and precautionary measure while the concerns were investigated and clarified. The suspension was expressly characterised as non-disciplinary in nature. The Respondent appointed an independent external investigator and also notified TUSLA of the concerns. During the course of the investigation, the Complainant accepted making the “big kiss” comment during what was described as a safari game and explained that the children laughed and enjoyed the joke. The child involved was stated to have been eleven years old.

In response to concerns surrounding the child handover, the Complainant explained that, based on previous childcare experience, children were generally released where the child identified the adult collecting them and that they did not ordinarily speak to parents unless there was a particular reason to do so. The Complainant stated further that they had not previously observed the process being conducted differently.

The investigation ultimately confirmed concerns regarding the Complainant’s professional judgement, safeguarding awareness, and recognition of appropriate professional boundaries. The Respondent stated that it remained particularly concerned that, even following investigation, the Complainant did not demonstrate insight into why either the comment made to the child or the child handover arrangements could be considered inappropriate. The Respondent submitted that insight, judgement, safeguarding awareness, and risk recognition constitute core competencies for childcare workers and argued that the absence of such competencies represented a legitimate basis for deciding not to confirm employment during a probationary period.

The Respondent categorically denied that gender identity played any role whatsoever in the decision-making process and maintained that any employee, regardless of gender identity, who made an inappropriate comment to a child, failed to appreciate professional boundary concerns, and demonstrated insufficient safeguarding judgement would have been treated in precisely the same manner. It argued that the Complainant’s allegations of discrimination were speculative in nature and unsupported.

The Complainant alleges that she was discriminated against on the gender ground. The Respondent argued that the Complainant’s employment was terminated because she did not pass her probationary and for no other reason.

In Melbury Developments Limited v Arturs Valpeters IEDA09171 it was stated:

"...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 speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85 places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. "

In Southern Health Board v Mitchell the Labour Court considered the extent of the evidential burden which the Complainant, under the Acts, must discharge before a prima facie case can be made out.  It provided inter alia as follows: 

“The first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a Complainant must prove, on the balance of probabilities, the primary fact from which they rely in seeking to raise a presumption of unlawful discrimination.  It is only if these primary facts are established to the satisfaction of the Court and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the Respondent to provide that there was no infringement of the principle of equal treatment.

The Complainant, who identifies as female, alleges that she was discriminated against on the gender ground. The Complainant commenced employment with the Respondent crèche on 7 November 2025. Her contract of employment contained a six-month probationary period.

Within the first few days of her employment, two complaints were made by parents of children attending the crèche. The first complaint concerned an allegation that the Complainant had offered “a free kiss” as a prize during a game being played with children. The second complaint related to the handover of a child without the Complainant first verifying the identity of the person collecting the child. These complaints were subsequently notified to TUSLA by the parents concerned.

The Complainant was placed on paid suspension while the matters were investigated. Following the investigation, findings were made which raised concerns regarding the Complainant’s professional judgement, safeguarding awareness, and recognition of appropriate professional boundaries. Thereafter, a probationary review was conducted, following which it was determined that the Complainant had not successfully completed her probationary period and that her employment would be terminated on that basis.

There are no facts before me from which I could conclude that the Complainant’s employment was terminated on discriminatory grounds related to gender. The evidence before me clearly demonstrates that the Complainant did not successfully complete her probationary period due to concerns regarding her professional judgement, safeguarding awareness, and recognition of appropriate professional boundaries, and for no other reason.

It is important to note that the complaints in question were not initiated by the Respondent, nor by any servant or agent of the Respondent. Rather, they were made independently by parents whose children attended the Respondent’s service. The Respondent had no hand, act, or part in the making of those complaints. Instead, the Respondent was required to respond to safeguarding concerns raised by third parties and to assess the matters in the context of the Complainant’s probationary employment and suitability for a childcare role.

On the basis of the evidence before me, I find that the Complainant has failed to establish a prima facie case of discrimination. Accordingly, the complaint fails.

The complaint fails.