Complainant

Respondent

Parties

Mr Biodun Ogunniyi

Barclay Chemicals Manufacturing Limited [amended on consent at hearing]

Representatives

Self-Represented

Mr Jason Murray BL instructed by Ms Laura Dillon Solicitor Fieldfisher Ireland LLP

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-00075754-001

25/09/2025

These matters came before the Workplace Relations Commission dated 25/09/2025 as a complaint submitted under section 77 of the Employment Equality Act, 1998.   The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 20/07/2026. 

The Complainant at all material times was employed as a Senior Accounts Payable Support.   The Complainant commenced employment with the Respondent on 07/07/2019 with such employment terminating by way of resignation on 03/09/2025.

The Respondent company is a family-led company engaged in the manufacturing and distribution of agriculture crop protection products. The Respondent employs approximately 115 employees.

The Complainant was in receipt of a monthly salary of €3441.29 for which he worked 37.50 hours per week.

The Complainant claims he was dismissed from his employment for a discriminatory reason.  The Respondent contests the claim.

The Complainant relied on the narrative of his complaint form together with transcripts of text messages and emails.     

The Respondent filed a written submission and supporting documentation. 

Parallel Complaints

The Complainant brought complaints under both the Unfair Dismissals Act and the Employment Equality Acts (“EEA”); however, only the EEA claim was pursued at the hearing. In such circumstances, the WRC issues correspondence requiring the party to elect between the claims and advising that, if no election was made by the specified date, the Unfair Dismissals claim would proceed and the EEA claim would be treated as withdrawn.

Having reviewed the Complainant’s WRC file, it appears that the relevant notification was not issued for the reasons set out below.

The facts as established from a review of the file indicate that the Complainant filed a claim with the WRC on 25/09/2025 under section 77 of the Employment Equality Act, 1998 claiming he was dismissed for a discriminatory reason or for opposing discrimination.  This claim was allocated the adjudication reference number ADJ-00062583.

The Complainant filed a further complaint with the WRC on 12/11/2025 under section 8 of the Unfair Dismissals Act, 1977, alleging unfair dismissal. This complaint was assigned adjudication reference number ADJ-00063846.

As the employer details provided by the Complainant in the second complaint differed from those recorded in the first, the WRC did not identify a connection between the two complaints.

This matter first came to my attention when I reviewed the Respondent submission prior to hearing where I noted there had been two complaints filed.

Accordingly, in the interests of fair procedures I explained to the Complainant what had occurred and invited him to seek an adjournment which would be granted in order that he could take the time to consider the matter and elect which claim he wished to pursue. 

It was explained to the Complainant that the only complaint properly before me for adjudication on the day was his initial complaint under the EEA.  The provisions of section 101 subsection 4(a) were explained to the Complainant. 

The Complainant indicated that he wished to continue with the EEA complaint; he declined to seek an adjournment.  It was explained to the Complainant that his complaint under the Unfair Dismissals Act would need to be withdrawn and he was asked again if he would like more time to consider whether he wanted to adjourn on the day to have time to consider which claim he wished to pursue; he indicated his preference to continue.

Accordingly, the hearing proceeded on that basis; the matter proceeded as a claim pursuant to section 77 of the Employment Equality Act, 1998.     

CA-00075754-001

The Complainant in direct evidence on oath submits he didn’t resign.  The Complainant submits he did not receive the various policies exhibited in the Respondent supporting documentation.  The Complainant outlines his family circumstances in comprehensive detail and he submits he was looking for flexibility.  The Complainant asks why would he resign given his family circumstances.

Under cross-examination the Complainant is asked if he accepts there is no ambiguity in his contract regarding his usual place of work which he accepts and he agrees his contract has never been amended.  The Complainant confirms he was living in Clonsilla when he joined the company and then he moved to Dundalk and he categorically denies, when asked, if he then moved to Belfast. 

The Complainant maintains his wife and children moved to Belfast but he didn’t.   It is put to the Complainant that he was living in Belfast in September which is denied again. 

The Complainant ultimately does accept he was living in Belfast in September 2025 when conversations were taking place with his manager about non-compliance with the hybrid working policy. 

It is put to the Complainant that none of his story has any credibility when he is asked for his account of the meeting that took place in September with his line manager during which certain matters that had been agreed between them in March were discussed.  The Complainant submits he told his wife his manager said he had to resign because he can’t comply with the Hybrid requirements and submits his line manager told his there was nothing she could do.   The Complainant accepts his line manager told him she would try to get him a longer notice period. 

It is put to the Complainant that he flew to Nigeria on 9 October and he told nobody and the Respondent only became aware when there were connectivity issues.  It is put to the Complainant that he didn’t respond to a number of emails sent to him by the Respondent. 

In closing the Complainant submits the policies exhibited are new to him and none of them existed before.  The Complainant submits he is the only person in his role and he has nobody to compare with.  The Complainant submits it is not fair that others work from home as they all work for the same company.  The Complainant submits he trained new employees working from home. 

CA-00075754-001

The Complainant chose to resign from his employment rather than return to work in line with the Respondent’s hybrid working policy. The Complainant has not been the subject of any discriminatory treatment and was not dismissed from his employment. Further, the Complainant’s resignation does not constitute a constructive dismissal in circumstances where it was entirely his prerogative to resign from his position. Whilst entirely the Complainant’s prerogative to resign, his resignation does not give rise to any culpability or liability on the part of the Respondent. The Complainant did not lodge any grievance or complaint during his employment.

Under the heading “Place of Work”, the Complainant’s contract of employment states that “Your usual place of work is the Company’s Head Office….”.

The Complainant worked from the Head Office until the pandemic, at which time all employees were required to work from home.

Throughout early 2025, the Respondent implemented a phased return to the office for all relevant employees. On 11 March 2025, the Complainant had a meeting with his direct line manager, Ms Annemarie Durkin (Finance Manager) surrounding the phased return to a hybrid working model.

By email dated 13 March 2025, Ms Durkin wrote to the Complainant outlining the requirement for him to work to the Respondent’s hybrid working model as follows:

After Covid, the company requested that all employees to return to the office 1 day per week, which has extended to two days per week. Your request to continue working from home was approved for an extended period of time while you put some measures in place to allow you come on site.

Almost three years have passed since then and we must draw a line and put a timescale in place for you to fully comply with the company mandate.

We have agreed the following:

1 day per month on site April ‘25 May ‘25 June ‘25

2 days per month on site July ‘25 August ‘25

2 days per week on site September ’25 onwards.

The Complainant did not respond to the above email.

Despite providing the Complainant with a six-month lead in time, the Complainant notified the Respondent in September 2025 that it was his intention not to comply with the hybrid working policy of the Respondent.

On 2 September 2025, the Complainant met with Ms Durkin and informed her that he was considering his options with regard to his employment. The Complainant informed Ms Durkin that he and his wife were considering if one or the other were to discontinue working to become a stay-at-home parent.

On 3 September 2025 via a Microsoft Teams call, the Complainant tendered his resignation to Ms Durkin and informed her that the decision had been reached after consulting with his wife. Ms Durkin, on behalf of the Respondent, accepted the Complainant’s notice of resignation. Ms Durkin will give full evidence on the conversation and the agreement that she would seek an extension of the Complainant’s notice period.

By email dated 3 September 2025 at 0956hrs, Ms Durkin wrote to the Complainant outlining the discussion that was had surrounding the Complainant’s compliance with the hybrid working requirement.

Ms Durkin stated, inter alia: Yesterday, you mentioned that your personal circumstances are preventing you from coming onsite. It was disappointing to learn that, despite our agreement, you only shared today that you cannot comply with what we agreed upon. I understanding that, like many families with young children, you and your wife need to consider what working arrangements best suit your family needs. This is why I provided six months’ notice for you to make the necessary arrangements to comply with our agreement.  

The Complainant did not respond to the above email. 

By email dated 3 September 2025 at 1637hrs Ms Durkin emailed the Complainant acknowledging his resignation.  During a Teams meeting on 8 September 2025, the Complainant announced his resignation to the wider Finance team.

Correspondence passed between the Complainant and Ms Durkin between 5 September and 11 September.  On 8 September 2025, the Complainant stated that he was requesting “… the opportunity to work from home on a full-time basis.”

By reply on 9 September 2025, Ms Durkin provided a full and detailed response. Ms Durkin stated, inter alia:

The company has been more than fair with the extensive period given for you to comply with the two-day on-site requirement. For the reasons documented above, your request to work from home on a full-time basis, received on 8th September, is denied. … As far as I was aware, you were handing in your notice last week after your own considerations towards your personal life. Your departure was even announced to the team. I have supported you to date with decisions you needed to make for your family but we are not aligned anymore on the requirements of you and your role. I expected to receive your letter of resignation yesterday and even confirmed with HR that I would like to support you in a longer notice period for you and your family to prepare financially for the upcoming changes.

The Complainant did not respond to the above email.

By email dated 16 September 2025, Ms Eimear Bannon (HR Manager) emailed the Complainant outlining a conversation that they had had on the same day.  Ms Bannon noted that:

 … you have requested to stay working at Barclay and to WFH on a full time basis. The company is not obliged to accept the retraction of your resignation. Annemarie has requested that the company increase the notice period you are entitled to be paid (1 month), to allow you time for you to find suitable role and settle your personal circumstances. This has been agreed … The company will allow you a reasonable amount of time to attend interviews during this notice period. …

By email dated 24 September 2025, attached at Ms Durkin emailed the Complainant and confirmed that the Complainant’s employment would end after his notice period on 19 December 2025.

Unbeknownst to the Respondent, the Complainant left the jurisdiction and travelled to Nigeria in or around the start of October 2025. The Respondent only became aware of the fact that the Complainant was in Nigeria when he began to have I.T. problems.

The Complainant never made any request pursuant to the Respondent’s International Remote Work Policy, nor informed his manager that he would be working from Nigeria in October 2025.

When Ms Durkin was made aware that the Complainant was in Nigeria, she called him via WhatsApp. The Complainant stated that he was in Nigeria for a family emergency and sent an email on 13 October 2025:

This is the message request as per our conversation, as I have emergency for my mother, and am yet to talk to Eimear.

I’ve request for emergency leave (pending outcome of the operation on both her eyes).

Last time we had conversation, I informed that personal problem should be deal with by employee, and family emergency occurred.

Thanks a mil. 

By WhatsApp message dated 17 October 2025, attached at Ms Durkin informed the Complainant that after taking into consideration what he was dealing with, the Respondent would pay the Complainant his notice period without the need for him to undertake his duties. 

Good morning Abbey, I am so sorry to hear that your mam is going through this tough situation.  Taking everything into consideration that you are currently dealing with, I have discussed with HR that I would like to pay your notice period rather than have you work until 19th December.  You will be paid your outstanding leave also…..

The Complainant did not respond to this WhatsApp message.

The Complainant had a period of six months to consider his options, and on the day of his resignation took time to speak with his wife to consider his options. There were no heated exchange(s) or high emotion(s) and the Complainant clearly considered his position before tendering his resignation, which was accepted by the Respondent. As a matter of law, it is respectfully submitted that the Respondent was entirely correct in its position.

It is respectfully requested that this Adjudication Officer find that the each of the within claims are not well founded.

Law relied upon by Respondent

Section 2(1) of the Employment Equality Act, 1998

Section 1(1)(b) of the Unfair Dismissals Act, 1977

Western Excavating (ECC) Ltd v Sharp [1978] IRLR 332

Berber v Dunnes Stores Ltd [2009] IESC 10

A General Operative v A Religious Society ADJ-00002814 (28 March 2017)

Millet v Charles Shinkwin [2004] 15 E.L.R. 319

Summary of direct evidence and cross-examination of Respondent witness Ms Annemarie Durkin

At hearing the Complainant’s line manager on oath outlined she was his direct line manager and that he had worked on site originally and then remotely during Covid.  After Covid staff were asked to come into the office one day a week which was extended to two days a week.  The Complainant’s request to work from home (hereafter WFH) had been approved so that he could make arrangements to allow him to come on site but almost 3 years have passed since.       

In March 2025 the line manager submits it was time to draw a line and the Complainant would have to comply with the hybrid arrangements like everyone else.  A discussion took place and the line manager emailed the Complainant after the discussion ensuring there would be no ambiguity on what had been discussed and, as she had thought, agreed, as he never got back to her to indicate otherwise. 

The Complainant did come in one day a month for 3 months and he did not come in at all in August.  The line manager submits they met in September; the Complainant came to her office with a bunch of paperwork and a photo of his car with a smashed windscreen and said he wouldn’t be able to come to work because of that. 

The Complainant outlined to her that he and his wife were looking at options as to which one of them would be the primary care giver for the family.  The line manager suggested to him to take some time out and suggested he leave early to consider and discuss with his wife.  The line manager submits the following day he didn’t come to the office but they had a Teams call and he said he couldn’t come back.  The line manager submits she asked him if that meant he was resigning to which he replied yes.  The line manager submits she asked him to put it in writing and she told him she would try to get him 3 months’ notice if she could. 

The lIne manager, when asked if she was considering terminating him, replied ‘no not at all he was a great worker on site – working from home doesn’t suit everybody.’ 

The line manager submits that when she emailed the Complainant on 3 September, she had expected that he would reply to it and he didn’t.  The Complainant had been shown significant flexibility; everyone else in her team was back in the office.  The line manager submits he never replied to the email she sent him on 3 September setting out her understanding of the conversation they had which was that he resigning his position. 

The line manager submits she didn’t hear from the Complainant again until 8 September when she received a WFH request on a full-time basis.  The line manager submits she was surprised to receive this as they had an agreement in place between them that he would return to the office on a phased basis since March. 

The line manager submits she had received a phone call from the IT manager to ask if she had given permission for the Complainant to be on the travel list.  The line manager phoned the Complainant and asked him to confirm his location – they had been on a Teams call that morning and he never said he was away; he had said he had technical issues with his camera. 

He was in Nigeria and the line manager requested that he email her to this effect.   

The line manager submits she absolutely did not dismiss the Complainant – he resigned because he couldn’t comply with the hybrid working arrangements.  The line manager submits she went above and beyond for the Complainant and he had been provided with extensive flexibility more than anyone else on the team. 

The Complainant availed of the opportunity to cross-examine the line manager and he asked her about an employee [redacted] who was working from France.  The line manager submits she couldn’t discuss the ins and outs of someone else’s contract and that everybody who had a normal contract was expected back at the office. 

In closing submission the Respondent submits there was no dismissal; this was a resignation from employment.  The Employment Equality Acts do cover constructive dismissal but there is nothing that shows the Complainant was entitled to resign.  There was breach of contract; no egregious act. 

There was no discriminatory dismissal; no prima facie case has been made out. 

There has been no evidence, and we do not even know the ground he is claiming. 

CA-00075754-001

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me.  I have carefully considered the oral evidence adduced at hearing.  I have carefully considered the caselaw to which I have been directed by the Respondent.  I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

Although much of the relevant factual background is agreed, the parties differ in their understanding, perception, and interpretation of how events unfolded.

I must reach my conclusions by applying the law to the facts presented, having regard to all relevant factors and surrounding circumstances. The role of an Adjudication Officer is to determine the case on the evidence before them and, where necessary, resolve conflicts in that evidence.

Where the evidence of the parties differs greatly and cannot be reconciled findings are made on the balance of probabilities.  In my decision-making role I am constrained both by statute and by precedent. 

I am guided by the findings of the Labour Court in Rezmerita Limited v Katarzyna Uciechowska [DWT1018] where the Court held as follows:

“In this case there is a marked conflict in the evidence tendered on behalf of the Respondent as against that given by the Claimants in relation to all material issues arising in this case.  There was also an absence of any probative independent corroboration on either side.  The standard of proof necessary to rebut the presumption of non-compliance is the preponderance of probabilities, usually referred to as the balance of probabilities.  In Miller v Ministry of Pensions [1947] 2.All E.R, 372 Denning J. (as he then was) explained, in relation to this standard of proof, that: -

“[i]f the evidence is such that the Tribunal can ‘say we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not.”

The Relevant Law

This is a complaint pursuant to section 77 of the Employment Equality Act, 1998 (“the EEA”). 

It is the Complainant’s case thathe was dismissed for a discriminatory reason. 

Section 6 of the EEA provides as follows:

“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”)”.

The EEA at section 85A sets out the burden of proof as follows:

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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

The effect of section 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, because of one or more of the grounds outlined in the EEA, he had been dismissed. 

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 considering this matter, I am mindful that the legislation and case law referred to above make clear that the Complainant bears the burden of establishing facts from which discrimination may be inferred. Only if the Complainant establishes a prima facie case of discrimination does the burden shift to the Respondent to rebut it.

Dismissal:

Section 2(1) of the Employment Equality Act, 1998 (“the EEA”) provides as follows: 

“dismissal” includes the termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so, and “dismissed” shall be construed accordingly;

Section 1(1)(b) of the Unfair Dismissals Act, 1977 Act provides as follows: 

“The termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice that the termination to the employer”.

Regarding a dispute in relation to the fact of dismissal, in the matter of Longford County Council v Joseph McManus [UDD1753] the Labour Court held as follows: 

“As a dismissal as a fact is in dispute it is for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined”.

The case law envisages two circumstances in which a resignation may be considered a constructive dismissal which is unfair within the meaning of the Act. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment, the employee would be entitled to regard himself or herself as having been dismissed and that the dismissal was unfair.  

Secondly, an additional ‘reasonableness’ test may be relied upon as either an alternative to the contract test or in combination with that test.

This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, and, if so, he is justified in leaving. 

The Contract Test

The accepted statement of this test is by Lord Denning MR in Western Excavating v Sharp [1978] ICR 221 as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself discharged from any further performance.  If he does so, then he terminates the contract by reason of the employer’s conduct.  … [T]he conduct must … be sufficiently serious to entitle him to leave at once …”

The Reasonableness Test

Constructive dismissal may arise where the employer’s conduct was such that it was reasonable for the employee to terminate his or her employment.  Lord Denning MR addresses this concept in the

same case as follows:

“It is that the employer must act reasonably in his treatment of his employees. If he conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, the employee is justified in leaving.”

It is well-established in this context that there is a reciprocal duty on an employee to act reasonably in terms of affording an employer the opportunity to address any issues.  This is clearly set out in Reid v. Oracle EMEA Ltd [UD1350/2014] where the EAT stated: 

“It is incumbent on any employee to utilise and exhaust all internal remedies made available to himor her unless he can show that the said remedies are unfair.” 

In this regard, the Employment Appeals Tribunal in Conway v. Ulster Bank Ltd [UD474/1981] held that a complainant had not acted reasonably in resigning “without first having substantially utilised the grievance procedure to attempt to remedy her complaints.

The Labour Court in Ranchin v. Allianz Care S.A.[UDD 1636] held as follows:

“In constructive dismissal cases, the Court must examine the conduct of both parties.  In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.” 

InMary Kirrane v. Barncarroll Area Development Co Ltd [UDD1635] the Labour Court held that the person complaining of constructive dismissal must also access available grievance procedures to deal with the circumstances which led him/her to resign. 

In Berber v. Dunnes Stores [2009] 20 ELR the Supreme Court held as follows:

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.  The term is implied by law and is incident to all contracts of employment unless expressly excluded.  The term imposes reciprocal duties on the employer and the employee.”

In Berber the Supreme Court detailed a test that looked to consider the conduct of both employer and employee as a whole when assessing if constructive dismissal has in fact occurred; and the following four principles are noteworthy: 

1. The test is objective
2. The test requires that the conduct of both employer and employee be considered
3. The conduct of the parties as a whole and the accumulative effect must be looked at
4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.

In Berber the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was:

“Implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.  An objective test means the issues detailed must be viewed not in relation to this particular employee and her personal circumstances; rather did the conduct of the employer objectively judged repudiate the contract. If not a contract breach, was the conduct of the employer so unreasonable to justify leaving?”

In considering whether there has been a constructive dismissal I have to determine whether there has been a repudiatory breach of contract by the Respondent, or, if there has been no repudiatory breach, whether the Respondent engaged in conduct which made it reasonable for the Complainant to terminate his contract. 

The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v. Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328.

Regardless of whichever test is applied, the threshold for constructive dismissal is very high (Nicola Coffey v Connect Family Resource Centre Ltd, UD 1126/2014 and Calderon & Others v Lootah & Others [UD1219/2013]

The Complainant bears the burden of proving on the balance of probability that, due to a fundamental or repudiatory breach of contract and/or unreasonable behaviour on the part of the Respondent, he had no choice but to resign

The proofs which the Complainant must advance to prove his case are that the behaviour of the Respondent, and of which he complains, corresponds with the requirements laid out in one or both of the two tests and was behaviour which left him with no option other than resignation

The Relevant Facts

The Complainant submits he was dismissed for a discriminatory reason; he did not resign.  The Respondent submits the Complainant was not dismissed; he resigned. 

The fact of dismissal is in dispute and it is up to the Complainant to prove, on the balance of probabilities, that he was constructively dismissed. 

The Contract Test

I must consider whether there has been a repudiatory breach of the contract of employment. 

I note that after Covid the Respondent requested that all employees return to the office 1 day per week which was then extended to 2 days per week.  I note the Complainant was facilitated by being approved to work from home for an extended period of time so that he could put measures in place to allow him to come on site; it is not disputed that such approval continued for 3 years.    

I note from the facts as presented that in March 2025 a conversation took place between the Complainant and his line manager during which there was agreement reached on a phased return which comprised 1 day per month for April, May and June; and 2 days per month for July and August with 2 days per week on site from September onwards. 

It is not in dispute that this agreement was set out in writing by the line manager after the aforesaid conversation had taken place.   

I note and it is not in dispute that on 02 September 2025 the Complainant met with his line manager and he indicated to her that his personal circumstances were preventing him from coming on site.  I note the Complainant had not attended on site at all during the month of August.   

I note that, in the intervening period of 6 months between the March discussion and the Complainant’s scheduled return to work on site every Tuesday and Wednesday commencing 2 September, the Complainant did not at any time indicate that he might have a difficulty complying with the company policy. 

I find it noteworthy the Complainant did not, at any time in the intervening period between March and September, reply to the email from the Respondent setting out an understanding of that which had been agreed between the parties in March.     

I am of the view that, rather than ignore what had been set out to him in an email, in circumstances where he did not appear to be in agreement, he could have raised a grievance at any time during the six months.  I note the Complainant now states he was not in agreement with that which the Respondent submits had been agreed between the parties, the details of which were set out in writing in the aforesaid email, albeit he never raised this at the time or since by way or a grievance or otherwise.

I must note that it was never satisfactorily explained why the Complainant, who clearly sought a permanent WFH arrangement, did nothing about this for those six months between March and September.  There is nothing at all put before me by the Complainant that would suggest he took any action to seek to regularise his working arrangements. 

In my view or it is at least logical that the Complainant would have taken some form of action during this period to regularise his work arrangements or indeed to raise a grievance if he was not in agreement with that which had been set out to him in an email by his line manager in March.           

Alternatively, during the intervening six-month period, the Complainant could have sought to regularise his working arrangements by formally requesting to work from home on a permanent basis.  For clarity, this does not mean that such a request would necessarily have been granted.      

However, the Respondent would have been required to consider such a request in accordance with the WRC Code of Practice for Employers and Employees on the Right to Request Flexible Working and the Right to Request Remote Working. 

It is noted the WRC devised a Code of Practice pursuant to Section 3(1) of the Work Life Balance and Miscellaneous Provisions Act 2023 to provide practical guidance for the making and consideration of flexible and remote working requests including guidance on best practice principles throughout the decision-making process.  This was incorporated into law by S.I. No. 92/2024 - Work Life Balance and Miscellaneous Provisions Act 2023 (Workplace Relations Commission Code of Practice on the Right to Request Flexible Working and the Right to Request Remote Working) Order 2024. 

Section 21(1)(a)(iii) of the Act expressly requires consideration of the requirements of the Code of Practice.  In particular, the Code provides: “An employer who receives a request for RW must consider the request having regard to: - their own needs, i.e. business needs; and - the employee’s needs, i.e. their reasons for requesting RW; and - the requirements of this Code of Practice in relation to considering a request.  An employer should consider a request for RW in an objective, fair and reasonable manner.” 

Along with other guidance, it provides a non-exhaustive list of factors that may be considered when assessing the suitability of a particular role and employee for remote working. 

I note the Respondent’s policy came into effect on 01 September 2025.  However, in my view, an employee in the Complainant’s position who wished to work from home permanently could reasonably have been expected to be aware of the relevant legislative provisions, particularly given the media coverage at the time of enactment and prior to enactment.  These provisions were directly relevant to the Complainant’s circumstances, as he appeared to seek to work from home full-time / permanently.  Despite this, the Complainant waited until almost a week after resigning before submitting a request to work from home on a full-time basis. 

I note during the relevant period (intervening period between March and September) there was information available on the WRC website including a template application for remote working to facilitate and assist employees in the making of such a request. 

It is noted that Section 20(3) of the relevant legislation sets out the manner in which an employee may apply for remote working, stipulating that an application must be in writing and must be submitted eight weeks in advance of the proposed date of commencement of the remote working. 

On balance, I find that the Complainant has not identified any action by the Respondent amounting either a significant or minor breach of his contract.  Repudiation is generally understood as an unwillingness or inability to fulfil a contractual obligation.  In this case, any such unwillingness or inability was not attributable to the Respondent.   

The Reasonableness Test

I note the Respondent had facilitated the Complainant for a number of years in his request to continue to work from home.  I note the Respondent, in line with many organisations, sought to implement a hybrid working model with a requirement to be on site 2 days per week. 

I am unable to find the conduct of the Respondent in raising these matters with the Complainant meets the standard of being “an arbitrary, capricious or abusive exercise of managerial power” as described in Gogay v. Hertfordshire County Council[2000] IRLR 7030 such that it made it reasonable for the Complainant to resign. 

I note the Complainant at hearing gave broad ranging evidence in relation to his family arrangements, visa arrangements, living arrangements, childcare arrangements, and efforts to bring family members to Ireland and to Northern Ireland.  For the avoidance of doubt, the family issues raised by the Complainant which I fully accept are important to him do not determine this outcome in circumstances where I am obliged to apply the law to the facts and I am restricted in my decision to the legislative provisions. 

A key area of conflict in this case relates to matters that transpired during the course of a meeting between the Complainant and his line manager on 02 September 2025 and during the Teams call conversation that took place on 03 September 2025 between the Complainant and his line manager.   

The Complainant maintains he did not resign on 03 September.  I note the Complainant accepts his line manager sent him home early the previous day so he could discuss matters with his wife.  I note the Complainant accepts his line manager had told him she would try with HR to see if she could sanction 3 months’ notice for him so that he could look for work.   I note that the Complainant’s evidence that he told his colleagues he was leaving.       

It is apparent that a conflict of evidence exists between the accounts of the line manager and the Complainant regarding the nature of the termination of employment.  Where such conflict exists I am bound to make findings on the balance of probabilities as set out in Rezmerita.   

I find and I can only conclude that the Complainant’s assertion that he did not resign is difficult to reconcile with the facts as presented. 

It is particularly striking that, despite maintaining that he did not resign on 03 September, the Complainant did not respond to his line manager’s email setting out her understanding of events. I find it difficult to comprehend why, if no resignation had occurred, he did not immediately reply to his line manager by return to clarify his position, particularly as he continues to maintain that he did not resign.

Having regard to the totality of the circumstances, I find on the balance of probabilities that the Complainant has not pointed to any action on the part of the Respondent that demonstrates that there was a significant breach of his contract or that the Respondent’s conduct was such as to show that the Respondent no longer intended to be bound by one or more of the essential terms of his contract of employment.

I am not satisfied that the Respondent’s conduct, viewed in the round, came anywhere close to approaching the high threshold required to justify resignation. The evidence indicates ongoing engagement by the Respondent which, on any objective analysis, does not indicate a withdrawal from the employment relationship or an intention to abandon it. 

Conversely, it could be viewed as unreasonable that the Complainant ignored a number of emails from the Respondent the most important among which in the context of this complaint was the email from his line manager on 03 September as referenced above.   

I have considered the actions of the Respondent post-resignation and whether or not special circumstances exist whereby a reasonable employer would have allowed the Complainant to retract or to rescind his resignation.  

It is noted that the Labour Court in Charles Shinkwin v Donna Millett [ED/03/33] held that an employee may withdraw a notice of resignation where special circumstances exist relating to the context in which the decision to resign was taken.  The Labour Court went on to note that: “The resignation must be withdrawn within a reasonable time which will probably be quite short.  The test of reasonableness is an objective one decided in the circumstances of the case”.  

To this end I have regard to Dismissal Law in Ireland, at paragraph 21.24 as follows: 

“When unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude that the employee has resigned. However, context is everything. A resignation should not be taken at face value where in the circumstances, there were heated exchanges or where the employee was unwell at the time.”

In the matter of Kwik-Fit (GB) Limited v Linehan [1992] IRLR 156, the UK High Court held as follows,

“…If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment, personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (being jostled into a decision) and indeed the intellectual makeup of the individual may be relevant (see Barclay [1983] IRLR 313). These we refer to as “special circumstances”. Where special circumstances arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employers risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the “special circumstances” the intention to resign was not the correct interpretation when the facts are judged objectively.”

Having carefully reviewed the caselaw set out above, I am satisfied there was no evidence adduced by the Complainant that he made the decision to resign in circumstances where there were heated exchanges between the parties or where the Complainant was unwell.  There was no evidence put before me by the Complainant that would support such a scenario.

I find the Complainant has failed to establish he was constructively dismissed particularly when regard is had to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal”.   I cannot find the Respondent acted in a manner which was so unreasonable as to make it impossible for the Complainant to continue in the employment.

Based on my careful consideration of the evidence as presented, on balance, I find the Complainant has failed to discharge the burden of proof to support his claim that he was constructively dismissed for the following reasons.  There is no evidence to suggest that the Respondent no longer intended to be bound by any essential term of the contract of employment. 

On balance and having carefully reviewed all the facts as presented to me I cannot accept the proposition that the Respondent’s conduct was such that the Complainant could no longer be reasonably expected to put up with it so as to leave the Complainant with no option but to resign.  In assessing if the conduct of this employer was so unreasonable that it led to this employee being constructively dismissed, I must apply an objective standard.  I must consider the behaviour of both the Respondent and the Complainant. 

The facts do not tend to support the test as referenced in Berber. 

It is well established that other than in exceptional circumstances an employee claiming constructive dismissal must invoke and exhaust the employer’s grievance procedure. 

I am guided the case of Jabczuga v Ryanair Limited [UD66/2013] where the EAT held as follows:

“In resigning in circumstances that a claimant asserts amount to constructive dismissal, such claimant must act reasonably. This includes affording her employer an adequate and reasonable opportunity to address and remedy any grievance. By resigning before the grievance procedure had run its course the claimant did not afford this opportunity to the Respondent and the Tribunal is satisfied that she did not act reasonably in so doing. Accordingly, this claim pursuant to the Unfair Dismissals Act 1977 to 2007 fails.” 

I am also mindful of the case of PeadarDuane v Masonry Fixing Services Limited [UD35/2013] where the EAT determined as follows:

“It is incumbent on an employee in a constructive dismissal scenario to act fairly towards his employer, just as he is entitled to expect to be treated fairly by his employer. Part of this is that he will sufficiently notify his employer of any grievance and allow the employer a reasonable opportunity to resolve this. The claimant did not do so. He resigned before allowing the Respondent a reasonable opportunity to resolve his grievances.”

The Burden of Proof

In deciding whether the Complainant has discharged the burden of proof as set out in section 85A of the EEA set out above, I must consider the totality of his evidence given at the hearing.   In the first instance, I note that the Complainant was unable to link the alleged discriminatory dismissal to any of the grounds specified in the Act.  

It is noted the Complainant failed to identify the protected characteristic on which his EEA claim was based despite being requested on a number of occasions during hearing to identify same.  Despite my best efforts I was unable to get the Complainant to identify which of the nine grounds he relied on.    

Section 6(1) of the EEA provides that discrimination occurs where, on one of the discriminatory grounds, a person is treated less favourably than another is, has been or would be treated.  It is only if a complainant establishes a prima facie case of discrimination that the burden of proof shifts to a respondent to rebut the prima facie case.

In considering this matter I am cognisant of the Labour Court decision in The Rotunda Hospital v. Noreen Gleeson [DEE003/2000]where it held:

 “The first question the Court has to decide is whether the claimant has established a prima facie case of discrimination.”

I am satisfied the Complainant has failed to establish a prima facie case of discrimination as required by the Acts in circumstances where the burden of proof lies with the Complainant to demonstrate discrimination and to provide credible evidence to support their claim. 

It is well established that speculation or unsupported assertions cannot be elevated to a factual basis for discrimination.  I note the colleague with whom the Complainant appeared to seek to compare himself with worked in a different role and on a different team

In considering the submissions made and the evidence adduced by the Complainant I must apply the principles set out in Valpeters, and in doing so I am satisfied that these circumstances fall well short of the threshold required to shift the evidential burden. I therefore find that the Complainant has not established primary facts capable of raising an inference of discrimination

Furthermore, it is an inescapable fact that the Complainant has not identified the protected characteristic on which his claim is based.  Identifying such a characteristic is an essential prerequisite to establishing a claim of discrimination.  I am satisfied that the evidence does not disclose facts from which discrimination could reasonably be inferred.

Accordingly, I find that the Complainant has not established a prima facie case of discrimination for the purposes of the EEA. 

For completeness, upon inquiry, on more than one occasion during hearing, when asked to identify which of the nine protected characteristics he was citing to ground his claim, the Complainant’s response was that it was ‘unfair’.  

As I have found that no discrimination occurred, it follows that the Complainant was not constructively dismissed on discriminatory grounds.

Having carefully considered the evidence and submissions and applied the relevant law, I find that the Complainant was neither expressly nor constructively dismissed, whether on discriminatory grounds or otherwise.

On the balance of probabilities, I find that he resigned from his employment voluntarily.

CA-00075754-001

For the reasons set out above I decide this complaint is not well-founded.