Complainant

Respondent

Anonymised Parties

An Employee Ms D

An Organisation

Representatives

Aleksandra Tiilikainen IBEC

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-00071684-002

19/05/2025

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00071684-004

19/05/2025

The complainant submitted three claims on the 19th of May 2025.   The first claim relates to a claim of Unfair Dismissal under the Industrial Relations Act the second claim is under Section 77 of the Employment Equality Act and relates to a claim of discriminatory treatment on grounds of sexual orientation.   The third claim relates to a claim under the Sick Leave Act 2022.

The complainant at the outset of the hearing was asked to clarify whether she was pursuing an Unfair dismissal or a discriminatory dismissal.  The complainant at the outset of the hearing stated that her case was that of Unfair Dismissal under the Industrial Relations act and that she was also pursuing a claim of discriminatory treatment which was based on facts unrelated to her alleged dismissal.   The complainant later in the hearing withdrew the claim of Unfair dismissal as well as the claim in respect of Sick Leave clarifying that she was only pursuing a claim of discrimination.

The complainant submits that

she was employed by the respondent from the 10th  of April 2025 to 13th of May 2025

she was discriminated against on the grounds of her sexual orientation

Her partner Ms C was also employed by the respondent

The complainant submits that the respondent operates a discriminatory policy wherein it does not allow couples in a same sex relationship to work together in the same Department. 

The complainant submits that she and her partner were dismissed after the complainant was hospitalised and following which she and her partner Ms. C did not attend work the following day

The complainant submits that she had emailed a sick cert to cover her sick absence but attended the workplace the next day to deliver a sick cert

The complainant submits that she and her partner were dismissed by the respondent after they advised the respondent, they were in a same sex relationship

The respondent submits that

The complainant, Ms D was employed by them from 10th of April 2025

The respondent was closed for easter holidays from 21st to 25th of April returning on 29th of April

The complainant and Ms. C were absent from work from 5th of May to 8th of May due to a prearranged trip having arranged for others to cover their shifts

The complainant did not attend work on 12th of May  and attended at the premises the next day with a medical cert to explain her absence

Ms. C was also employed by the respondent from 10th of April and was also absent from work on 12th of May but did not phone in or explain her absence but attended with the complainant on the 13th when the complainant came to drop off her medical cert.

The respondent only became aware on 13th of May that Ms. D and Ms. C were a couple and advised Ms. C that they could not work in the same Department as a couple but that one of them would have to move Departments.  Ms. C advised they she did not want to work in separate Departments and said they were leaving.

The respondent submits that they contacted the complainant to clarify that she and Ms. C would have to work in different Departments, but the complainant immediately submitted a WRC complaint and told the respondent she did not want to receive any communication from them

The respondent denies that there was a dismissal but submits that it does have a policy against couples working together in the same Department and submit that this applies equally to heterosexual couples and same sex couples.

The respondent submits that the complainant was not dismissed but was told that she and her partner would have to work in different Departments after which she left

The respondent submits that it was not aware that the complainant and Ms C were a couple until they both missed a day of work and following which the complainant emailed to say she was in hospital Ms. C did not phone and did not attend work.

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

CA-00071684-002

19/05/2025

6.—F14(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—

Thus, the complainant must be the subject of less favourable treatment in comparison to another person on grounds of her sexual orientation. 

The Employment Equality Act 1998 prohibits discrimination as between any two persons in employment on the following nine grounds as contained in Section 6 (2) of the Act

Section 85A (1) of the Act provides: -

85A.— (1) Where in any proceeding’s 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.

It is clear from Section 85A (1) of the Act above that the burden of proof is on the Complainant. If the case meets the threshold set out above, then the burden of proof shifts and it is on the Respondent to rebut the presumption of discrimination.

This view is consistent with the decision of the Labour Court in Mitchell v. Southern Health Board [2001] ELR 201, where it was held thar:

“The first requirement […] is that the claimant 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 claimant must prove, on the balance of probabilities, the primary facts on 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 prove that there is no infringement of the principle of equal treatment.”

Section 85A (1) provides as follows:

— (1) “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

In Margetts v. Graham Anthony & Company Limited [EDA038] the evidential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such inferences can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

The Labour Court in the case of Melbury v. Valpeters [EDA0917] held as follows in its consideration of section 85(A):

“…provides for the allocation of the probative burden in cases within its ambit.  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, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”  

This requires a complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.  If he succeeds in so doing, then, and only then, is it for the respondent to prove the contrary.  The Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to a respondent.  “Prima facie” evidence is evidence which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.

The complainant advised the hearing that she was discriminated against by the respondent on grounds of her sexual orientation when she and her partner Ms. C were advised that they could not work together in the same Department due to the fact that they are a couple in a same sex relationship.

The complainant advised the hearing that she commenced employment with the respondent on 10th of April she stated that she attended an interview and at the end of it she was told she had the job.  Ms. D stated that she told the respondent that her friend Ms C was with her and that she was also available for work.  Ms. D stated that the respondent then interviewed Ms. C and gave her a job as well working in the same Department.   

The complainant advised the hearing that she was absent from work on the 12th of May following an incident where she had been hospitalised.  The complainant stated that she was unable to attend work and stated that Ms. C was also unable to attend work that day as she is the complainants’ partner and next of kin and so had to stay with her in the hospital.    The complainant advised the hearing that she had emailed the respondent to say she was in hospital and would not be in work but received no reply and so she went to the respondent premises the next day bringing a sick cert to explain her absence the previous day.

The complainant advised the hearing that she spoke to Ms. P and explained why she had been absent and that she had a sick cert.  Ms. D stated that also explained that Ms. C had been absent for the same reason as she had to accompany Ms. D to the hospital as she is her next of kin and her partner.   Ms. D stated that Ms. P then told her that it they did not allow couples to work together in the same Department

Witness for the complainant Ms. C stated that she had also been absent form work as she had to accompany the complainant to the hospital after the complainant had suffered a medical emergency due to toxic inhalation and had to stay in hospital.   Ms. C had not contacted the respondent to say she would not be in work or to explain her absence, but she accompanied the complainant when she went to the premises to bring her sick cert on the 13th of May. 

Ms. C stated that Ms. D had explained the situation to the respondent as she had better English than Ms. C and so Ms. C had stayed a few metres away while Ms. D explained what had happened.

Ms. C stated that she saw Ms D speaking to Ms. P after which Ms. P left for a few moments and went to speak with Mr. S.  Ms. C stated that Ms. P then returned and told both her and Ms. D that they could work for the rest of the day, but Ms C stated that they refused to do this and left.

Ms. C stated that she did not hear the conversation between Ms. D and Ms P, but that Ms D told her that they had been fired and so they left.  Ms. D when questioned stated that Ms. P had told them that they could work for the rest of the day, but Ms. D stated that she refused as she knew the respondent was only doing this as they needed to get work completed and didn’t want to be without two people

Witness for the respondent Ms. P advised the hearing that the complainant Ms. D had commenced employment with the respondent on 10th of April having attended an interview on the 10th of April.  Ms. P stated that Ms. D attended the interview and at the end of it she was told she had the job.  Ms. P stated that Ms. D had stated that her friend Ms. C had come with her on the day of the interview, and she told the respondent that Ms. C   was also available for work.  Following this the respondent then interviewed Ms. C and gave her a job as well working in the same Department.   

Ms. P stated that she was not aware that Ms D and Ms C were a couple as Ms. D had referred to Ms. C as her friend.  Ms. P stated that she became aware on the 13th of May that Ms. C and Ms D were a couple.    Ms. P advised the hearing that neither Ms C or Ms D had shown up for work on the 12th of May but had attended the workplace later in the day and Ms. C had approached her explaining that she had been absent due to her being hospitalised the night before.  Ms. P stated that Ms C had also been absent from work and had not phoned in or provided a reason.  Ms. P stated that she asked Ms D why Ms. C had also been absent that day and Ms. D  explained that Ms. C was also unable to attend work that day as she is her partner and next of kin and so had to stay with her in the hospital.   

Ms. P stated that they have a number of couples working in the organisation but that they are not permitted to work in the same department and Ms. C and Ms D were working in the same Department and so she went to talk to Mr S about it and returned and advised Ms. D that they could not work together in the same Department as the organisation has a policy against couples working together.    Ms. P stated that Ms D then said that she would have to check with her partner about this and so she went and had a conversation with Ms. C who was standing waiting a few metres away but who did not speak a lot of English following which Ms. D returned and told Ms. P that they would be leaving as they did not want to be split up.    Ms. P stated that she asked Ms. D if they  would stay on and work for the rest of the day in the same Department, but Ms C refused stating that they were leaving.  Ms. P stated that Ms. D had at the time stated that she was leaving on good terms.  Ms P state that there was no issue with them being a couple but that it meant they could not work in the same Department and so one of them would have to move. Ms. P state that after receiving the WRC complaint form a few days later, they tried to meet with the complainant, but she refused stating that she did not want any more communication form the respondent.  Ms. P stated that the respondent does employ couples but that they need to work in different Departments.  Ms. P stated that it applies to all couples. 

The complainant advised the hearing that she had emailed the respondent to say she was in hospital and would not be in work but received no reply and so she went to the respondent premises the next day bringing a sick cert to explain her absence the previous day.    The respondent advised that Ms. J the intended recipient fo the email had been on leave and so it was not received at the time.

Witness for the respondent Mr S advise the hearing that the respondent organisation provides employment for people recovering from drug and alcohol addiction.  Mr. S stated that the company handbook contains a policy in which it prohibits couples from working together in the same Department.  Mr. S stated that the reason for this is that they do employ a lot of couples and very often this results in people bringing personal situations and arguments into the workplace or refusing to speak to each other while on the same team due to an argument at home which was bought into work.   Mr. S stated they introduced the policy for this reason.

Mr. S stated that Ms. C had introduced Ms. D as her friend on the day of the job interview and so the respondent had not been aware that they were a couple and so for this reason allowed then to work in the same Department until it became aware that they were a couple at which point they were advised that one of them would have to move Departments but they would be kept on the same shift.  Mr S advised the hearing that Ms. P returned a few minutes later saying that Ms. C did not want them to be split up and so they were leaving.

Mr. S stated that shortly afterwards he received the complaint to the WRC and he asked Ms P if there had been some miscommunication which led to this, and he suggested that he meet with Ms. D and Ms. C to clarify the situation.  Mr S stated that they tried to contact the complainant to arrange to meet in order to clarify matter, but she refused to meet and stated she did not want any communication from them.

The complainant submits that she was discriminated against when the respondent refused to allow her and Ms C to continue working together once they became aware they were a couple.  Ms. D submits that the respondent operates a discriminatory policy wherein it does not allow couples in a same sex relationship to work together in the same Department.

Witnesses for the respondent Ms. P and Mr. S advised the hearing that this policy applies to all couples whether they are same sex couple or heterosexual couple.

The complainant asserted that this rule did not apply to heterosexual couples stating that here were two heterosexual couples working together in the same department.  When asked for details of the names of those couples the complainant the complainant initially declined to name the couples stating that she didn’t have their permission but later she attempted to name the couples but was unclear of the individuals names and what department they were working in.

It was also unclear from the details provided whether the individuals being named as comparators were heterosexual couples or same-sex couples. The complainants evidence on this was also unclear as to whether the respondent was aware that the individuals in question were involved in relationships.  The respondent on this matter stated that unless they are advised that people are involved in a relationship they  would not be aware and it is up to the individuals involved to notify them if they are in a relationship.

The complainant asserted that Ms P dismissed her immediately once she advised Ms P that she and Ms C were partners however Ms C is evidence on this that Ms P left the conversation with Ms D y and want to speak to Mr S before returning and speaking to the complainant again.  This is in agreement with Ms P‘s own version of events. Ms C also stated that she could not hear the conversation between the complainant and Ms P as she was standing a few metres away as she had left Ms. D do the talking since she has a better standard of English.  The respondent Ms P  denies that there was a dismissal stating that the complaint and chose to leave once she was advised that she and Ms D would have to work in different departments. 

 Witness for the respondent Ms P stated that no dismissal took place and also that she would have no authority to dismiss anyone. She stated that she did advise a complainant that either she or Ms C would have to move department and the complainant refused stating that they would leave.   Ms P stated that she also told Ms D that she could finish off the day working in the same department as they had been but Ms C refused. I note that both Ms C and Ms D at the hearing conceded that they had been asked to return to their posts and continue the day in that department but that they refuse to do so stating that the only reason they respondent wanted them to do that is because production would be low without them.

Witness for the respondent Mr S evidence is that Ms P came to him and advised him that Ms D and Ms C were a couple and asked him for advice while Ms D waited outside. Mr. S  stated that he advised Ms P  to notify of the policy and that one of them would have to move departments.  Mr. S stated that no dismissal took place.

Ms P stated that as far as she was concerned the complainant  left on good terms as she had stated to Ms P that she was leaving on good terms.   Ms P stated that the complainant later email asking for clarification and she responded outlining the policy in respect of couples working together.

In considering this matter I note that the complainant in her evidence to the hearing asserted that she was aware of two heterosexual couples who were permitted to work in the same department however when questioned on this the complainant initially declined to name the couples stating that she didn’t have their permission but later she attempted to name the couples but was unclear of the individuals names and what department they were working in.

I note also the respondent’s position that it sought to contact the complainant having received the WRC complaint in order to clarify matters but that the complainant refused to engage.  I note the complaints evidence is that she had refused to communicate with the respondent as she had lodged her complaint with the WRC.  I note that the complaint to the WRC was received a few days after  the alleged dismissal. 

The complainant asserts that the respondent dismissed both her and Ms C when they advised her that they did not allow couples to work together.  The respondent denies that there was a dismissal stating that the complainant chose to leave but then submitted a WRC claim citing dismissal.  The respondent stated that after receiving the claim it considered the possibility that there was some miscommunication and so it sought to meet with the complaint and Ms. C to clarify that they had not been dismissed.  The respondent stated that Ms. D refused to meet them saying that she had put in a claim to the WRC which she had done a few days later.  

In considering this matter I note that both complainant and witness admitted they were asked to continue working for the day but the complainant refused and left.

I also note that no clear evidence was provided to support the assertion that heterosexual couples were treated differently.   I also note that the respondent even attempted to follow up and meet after the complaint, but the complainant refused. he rule applied equally to all couples regardless of orientation.   Accordingly I am satisfied that there was no evidence of less favourable treatment based on sexual orientation and that no dismissal occurred and that the complainant left voluntarily after refusing to accept a department transfer for either herself or her partner Ms. C.

Having examined the totality of the evidence adduced I am satisfied that the complainant Ms. D was not discriminated against by the respondent on grounds of her sexual orientation and was not subjected to a discriminatory dismissal in this regard.

Having examined the totality of the evidence adduced I am satisfied that the complainant Ms. D was not discriminated against by the respondent on grounds of her sexual orientation and was not subjected to a discriminatory dismissal in this regard.

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00071684-004

19/05/2025

The complainant at the hearing confirmed that she was withdrawing this claim.

The claim was withdrawn accordingly I declare the claim to be not well founded.