Complainant

Respondent

Anonymised Parties

Office Administrator

Educational Institute

Representatives

Ms. Martina Weir, SIPTU

Mr. Declan Thomas, IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00056876-001

27/05/2023

The Complainant commenced employment on 11th November 2007. At all relevant times the Complainant role was described as “Office Administrator”. The Complainant remains a permanent, full-time member of staff, in receipt of an average weekly payment of €861.50. 

On 27th May 2023, the Complainant referred the present complaints to the Commission. Herein, she alleged that she was sexually harassed in the course of her employment. By response, the Respondent denied the allegations on a substantive basis. In addition to the foregoing, and as preliminary objection to jurisdiction, they submitted that no allegation of sexual harassment occurred within the cognisable period for the purposes of the present complaint.

Following a series of adjournments, hearing in relation to this matter was convened for, and finalised on, 12th January 2026. This hearing was held in person at the Commission’s Sligo offices.

Both parties issued extensive submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of her complaint, while a member of the Respondent’s HR function gave evidence in defence.  All evidence was given under oath or examination and was opened to cross examination by the opposing side.

In circumstances whereby the subject matter of the complaint involves an allegation of sexual harassment, I have utilised my discretion to anonymise the decision in its published form.

At the outset of the hearing, the Respondent raised a preliminary issue as to jurisdiction, namely that the present complaint is out of time. In circumstances whereby this application may be determinative of the entire proceedings, it will be considered in advance of the substantive matter.

The Complainant alleged that her former line manager, made a number of comments of an inappropriate and sexual nature in her presence between 2020 and 2022. The Complainant further alleged that the Respondent attempted to exclude her from various workplace activities to impede her career progression.

The Complainant sought to resolve the matter informally on several occasions prior to lodging a formal grievance. When these efforts did not resolve the issue, the Complainant elected to refer a formal complaint identifying five specific allegations against the Respondent, which primarily concerned the aforementioned inappropriate comments. This correspondence was issued to the Respondent on 29th November 2022.

Owing to delays and a perceived lack of action by the employer, the Complainant requested through her trade union that a meeting be arranged in relation to the complaints raised. On 4th May 2023, the trade union proposed a meeting date of 7th May 2023, which was cancelled by the employer. As of the date the on which the present complaint was referred, no meeting had taken place.

On receipt of the present complaint, the Respondent convened a meeting in relation to the matters referred and issued a decision in due course. By this decision, the allegations raised by the Complainant were not upheld, primarily because the alleged perpetrator had left employment and could not be interviewed. In addition to the foregoing, the Respondent characterised the allegations as an attempt to facilitate the Complainant's transfer away from the department, despite the Complainant stating that the transfer was required on a health and safety basis.

Regarding the preliminary point raised, the Complainant, through her representative, accepted that the specific acts of sexual harassment occurred in excess six months prior to the submission of the present complaint. However, she submitted that the employer's failure to investigate her grievances and to protect her health and safety fell within the statutory time limit and ought to be considered under the relevant legislation.

The Respondent submitted that the claim was lodged out of time and could not proceed.

The Respondent referred to the formal complaint dated 29th June 2022 and stated that the allegations of harassment described by the Complainant occurred between 2020 and, at the latest, May 2022. The Respondent further noted that the present complaint was referred on 27th May 2023, with the result that the core allegations occurred in excess of one year prior to the referral.

Regarding the position outlined by the Complainant, the Respondent denied that the timeline served to bring the complaint within the statutory time limit. The Respondent submitted that the allegations concerning the failure to investigate the complaint did not constitute acts of sexual harassment and were not actionable under the relevant legislation. The Respondent further submitted that the alleged preparator had since left the department and there was no necessity to separate the parties whilst the investigation was ongoing.

The Respondent maintained that the actionable allegations were clearly out of time and that the complaint should be dismissed accordingly.

Regarding the present complaint, the Complainant has alleged that she was sexually harassed in the course of her duties. While the Respondent denied this allegation on a substantive basis, they submitted that the allegations in question were unambiguously out of time and that as a consequence, the Complainant did not have the relevant jurisdiction under the Act. 

In this regard, Section 77 (5A) of the Acts provides that,

“…a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

Section 77(6A) provides that,

“discrimination or victimisation occurs—

(i)                              if the act constituting it extends over a period, at the end of the period”

The application of these provisions was extensively considered by the Labour Court in the matter of Ann Hurley -v- Co Cork VEC, EDA 1124. Here the Court stated that,

“Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant…Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

This finding was approved by the Supreme Court in the matter of County Louth VEC v Equality Tribunal [2016] IESC 40. Here the Court held as follows:

“At the outset it is important to understand that both ss. 77(5)(a) and (6A) are intended to capture quite different circumstances. Subsection (6A) deals with situations where a single act occurs and where it continues to occur over a lengthy period, such as discrimination based on a regime, rule, practice or principle of an ongoing nature. A term in a contract is a good specific example of the provision’s more general meaning. In such a case the six-month period initiating the process will only start to run when the offending regime or practice ceases; or, put another way, the discriminatory act will be regarded for limitation purposes as having occurred only when such basis has ceased to exist.”

Regarding Subsection 5, the Court held that in considering a contention that events which occurred outside the cognisable period for the complaint made could be considered as part of a regime or continuum,

“…that if these occurrences were found to be acts of victimisation the Court would hear evidence in relation to all of the occurrences relied upon. If, however these occurrences were found not to have involved victimisation the complaint relating to the earlier occurrences could not be entertained having regard to s.77(5) of the act as the most recent occurrences would have been outside the time limit.”

By submission, the Complainant sought to rely on subsection 5 of section 77, in submitting that a series of separate acts constitutes a continuum that might render the earlier complaints in time for the purposes of the present Act. Having regard to the foregoing, the individual allegations must be examined in order to determine whether the same are “sufficiently connected”. In this respect, it should be noted that no finding is being made as to the allegations themselves (at this point), rather the nature of the same are being examined to determine whether they might comply with the requirements of subsection 5 and may form a continuum of discrimination.

During the hearing, the Complainant accepted that the allegations of sexual harassment occurred in excess of six months prior to the referral of the complaint, with many occurring well in excess of that timeframe. Thereafter, she submitted that the Respondent failed to properly investigate the allegations and failed to protect her health and safety throughout the process. Through her representative, she submitted that these constituted separate acts of discrimination that might serve to form a continuum as referenced above.

Regarding the first point, it is the case that further acts of discrimination can occur within an internal process. In the matter of Cast v Croydon College [1998] ICR the UK Supreme Court held that,

“…a further decision can constitute a separate act of discrimination even though it is made on the same facts as a previous decision, providing that there has been a further consideration to the matter and has not merely reiterated or referred back to the earlier decision.”

This case was cited with approval by the Labour Court in the matter of Beaumont Hospital -v- Petty Kaunda EDA 1930. Here, the Court held that the presentation of interview notes after the fact did not constitute a further act of discrimination as there was no such “further consideration” of the alleged discriminatory act as outlined above.

In the matter of Margaret Hannigan -v- HSE EDA2013, the Court found that an ongoing review of a potential reasonable accommodation for the Complainant constituted a further act of discrimination for the purposes of the present Act.

Having considered the above authorities, I find that the present matter may be distinguished from the above. The initial complaints raised by the Complainant related to allegations of sexual harassment by her former line manager. On the date of referral of the present complaint, the Respondent had engaged in no investigation at all and cannot be said to have repeated the harassment which Complainant alleged. It is further noted that the Complainant has also reffered this particular complaint under alternative legislation.

In support of her position, the Complainant referenced the Labour Court matter of A Store -v- A Worker EDA163. In that matter, following a detailed consideration of principles discussed above, the Labour Court found that in circumstances whereby an allegation of sexual harassment occurred within the cognisable period of the purposes of the present complaint, a continuum was formed whereby earlier complaints were rendered in time. Again, this authority can be distinguished from the present matter in circumstances whereby it was found that an allegation sexual harassment, albeit one that was not directed at the Complainant personally, occurred within the cognisable period.

In addition to the foregoing, it also cannot be the case the Respondent’s alleged failure to separate the parties was itself a further act of harassment on their part. In this regard, it was accepted that the alleged perpetrator left the Respondent prior to the referral of the complaint, and that he had been moved to an alternative department prior to so leaving.

Having regard to the foregoing, and in absence of any grounds on which an extension of time may be granted, I find that the Respondent did not discriminate against or harass the Complainant within the cognisable period of the purposes of the present complaint.

I find that the Respondent did not discriminate against or harass the Complainant within the cognisable period of the purposes of the present complaint.

Sexual Harassment, Cognisable Period, Continuum, Further Consideration