Complainant

Respondent

Anonymised Parties

A Hair Stylist

A Hairdressing Salon

Representatives

Mr. Shaun Boylan B.L. on the instructions of MW Keller & Son Solicitors

Mr. Dan Walshe B.L. on the instructions of Sean Ormonde & Co. Solicitors

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-00020609-001

11/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00020609-002

11/07/2018

The Complainant was employed by the Respondent as a Hair Stylist from 26 April, 2016 to 21 April, 2018 when her employment was terminated. The Complainant claims that she was discriminatorily dismissed from her employment contrary to Section 8(6) of the Employment Equality Acts on the grounds of disability and family status. The Complainant also claims that she was subjected to discriminatory treatment on the grounds of disability and family status contrary to Sections 8(1)(b), 8(4)(a) and (b) and 8(6)(c) of the Acts under both the disability and family status grounds.

The Respondent disputes the claims of discriminatory dismissal and discriminatory treatment under the Employment Equality Acts and contends that the Complainant’s employment was terminated by reason of redundancy.

The Complainant also claims that the Respondent has contravened the provisions of Section 12 of the Organisation of Working Time Act 1997 during her period of employment in relation to rests and intervals at work. The Respondent disputes the claim that it has contravened the aforementioned provision of the Organisation of Working Time Act 1997 in relation to the Complainant’s employment.

CA-00020609-001 – Complaint under the Employment Equality Acts

Issue of Jurisdiction - Incorrect Respondent

The Complainant disputes the Respondent’s claim that the Adjudication Officer lacks jurisdiction to investigate the instant complaints under the Employment Equality Acts and the Organisation of Working Time Act, 1997 on the basis that the incorrect legal entity has been impleaded as the Respondent in these proceedings.

The Complainant submits that her employer Ms. Y has been fully aware of the instant proceedings from the outset and that correspondence in relation to this matter was issued by her solicitor on 19 and 25 April, 2018 to Ms. Y prior to the referral of the complaint to the WRC. The Complainant submits that her complaint alleging discrimination contrary to the Employment Equality Acts which named the trading name of the business (namely XXX YYY) was referred to the WRC within the statutory time limits.

It was submitted that Ms. Y has registered XXX YYY as a business name and therefore it was clear that the instant complaints could only relate to Ms. Y as the trading name of the business has no legal existence in and of itself. The Complainant contends that Ms. Y accepted the instant proceedings and communicated with the WRC and has held herself out as the Respondent at all material times in relation to the complaints. The Complainant submits that its position on this matter is further evidenced by the fact that Ms. Y attended the hearing of the complaint on 12 November, 2019 (but which was subsequently adjourned).

The Complainant submitted that in keeping with the spirit of the governing statute, the Complaint Referral Form is a non-statutory form which is not meant to be a technical document but simply one that provides a means of conveying a complaint. It was submitted that it is clear from the judgment of the High Court in County Louth VEC v Brannigan [2011] IEHC 370 that rigidity should not be applied to the form once it has been established that that the Respondent was aware of the claim being made against it.

The Complainant further submits that the County Louth VEC case makes it clear that there is nothing to prohibit an Adjudication Officer from acknowledging that the claim is being made against Ms. Y unless that would introduce a new claim or some unfairness. It was submitted that is not the position in the instant case, given Ms. Y’s involvement and it would be an absurdity (in light of the facts and law) not to acknowledge Ms. Y as the Respondent in the proceedings and apply whatever actions or amendments are necessary in that regard.

Jurisdictional Issue – Scope of the Complaint

The Complainant submits that the inclusion of the family status ground in her submissions dated 12 November 2019 does not give rise to any issue relating to jurisdiction or an additional claim to that filed on foot of the WRC Complaint form on 11 July 2018.

It was submitted that the right to bring and have a claim heard is conferred by Section 77 of the 1998 Act as amended and that this does not require a specific ground to be set out in the WRC Complaint form when filed. Furthermore, there is no jurisdiction to further prescribe this mode of initiating the claim by reference to a non-statutory form and the County Louth VEC and the Equality Tribunal [2009] IEHC 370 and [2016] IESC cases (from both the High Court and the Supreme Court) show that the approach of the Courts and other bodies when determining legal rights should in fact operate conversely when it comes to pleadings provided that no prejudice arises.

It was further submitted that the specific grounds of discrimination are only relevant in two respects:

i. The Respondent is entitled to know the case being made against it;

ii. To succeed the Complainant must show that discrimination arose on foot of one of the nine grounds.

However, it does not follow from the above that the specific ground or grounds (of the nine) must appear on the WRC Complaint form (or other document initiating the claim). lt was submitted that such a proposition would be in conflict with the jurisprudence of the County Louth VEC case.

The issue is therefore one relating to particularisation of the claim of discrimination and not jurisdiction.

It was submitted that a complaint of discrimination was filed via the non-statutory WRC Complaint form on behalf of the Complainant on 11 July 2018. The Complainant submits that this invoked the jurisdiction to have the claim heard in respect of discrimination without any requirement that the form specify the grounds of that discrimination.

Thereafter, the issue became and remains one of fairness in respect of whether the Respondent can be expected to meet any aspects of the claim for discrimination of which it is unaware. ln this regard, it was submitted that the specific issue arising relates to particularising the claim for discrimination rather than giving rise to any additional such claim.

It was submitted that the Complainant has through her written submissions of 12 November 2019 fully particularised her claim for discrimination and specified which grounds she relies upon. As appears therein the Complainant does not seek to rely on any matters outside of the six-month time limit permitted for bringing a claim.

It was submitted that the only issue that can have arisen was one of fairness to ensure the Respondent was aware of the details of the claim and has had an opportunity to prepare to meet it on that basis.

The Complainant submits that any such issue that might have arisen has been cured by virtue of the adjourning of proceedings on the first hearing date, the filing of two sets of written submissions on behalf of the Complainant and the opportunity afforded to the Respondent to respond and prepare her case in advance of the next hearing date.

Substantive Issue

The Complainant commenced employment with the Respondent as a Hair Stylist on 26 April, 2016. She commenced a period of maternity leave in September, 2017 and returned to work on 7 March, 2018. The Complainant submits that she had not been subjected to any disciplinary procedures by the Respondent prior to taking this period of maternity leave. The Complainant submits that following her return to work from maternity leave there was a far greater scrutiny of her work and she was issued with a verbal warning on her first day back to work for failure to securely and safely handle cash. The Complainant contends that this was not part of her functions but was the responsibility of the Acting Manager.

The Complainant submits that the Respondent called a meeting on 30 March, 2018 to notify staff of what was stated to be a redundancy process in relation to terminating two positions. At that time the Respondent noted that the selection criteria and scoring system would be based on skills, qualifications, attendance and disciplinary record. Shortly, thereafter, on or about 3 April, 2018, the Respondent issued the Complainant with a written warning alleging that on that date she had not contributed fairly to housekeeping duties and taken numerous rest breaks.

The Complainant submits that individual meetings were held with staff on 4 April, 2018 as part of the redundancy process during which it became clear that the scoring system was also too include certain performance indicators such as the average docket spend per client, client retention and client requests. The Complainant contends that the inclusion of these indicators in the redundancy process, and the manner in which they were used in the scoring system, made it intrinsically discriminatory against her relative to her Comparator (Ms. A). This is because the Complainant’s six-month absence on maternity leave made it almost inevitable that she would have accumulated a lower average docket spend and that her client retention would not have recovered in the space of one month.

The Complainant submits that the relevant comparator for the purpose of this complaint was Ms. A, who also worked for the Respondent as a Hair Stylist during the material period in question. The Complainant claims that she did like work with Ms. A, who did not go on maternity leave, was subject to the redundancy process but whose position was not made redundant.

The Complainant submits that she received a second written warning on or about 7 April, 2018 stating that she had not complied with the required dress code when she wore a dark green top to work. This warning letter stated that the dress code was “black/white/grey” whereas the Staff Handbook indicated that the only dress code relating to colour was that it had to be 80% black.

The Complainant submits that further meetings took place between staff and the Respondent on 9 April, 2018 regarding redundancies at which the Complainant was informed that her position was at risk for reasons including low client retention and low average docket scores. The Complainant contends that both of these categories in the selection criteria were intrinsically discriminatory against the Complainant relative to the Comparator. The Complainant also received a letter from the Respondent on this date which indicated that a final decision in relation to the redundancies would be made on 13 April, 2018 irrespective of the absence of any employee.

The Complainant submits that she became stressed in light of her treatment by the Respondent and was certified unfit for work by her GP from 9 to 16 April, 2018. The Respondent was furnished with a copy of this medical certificate on 10 April, 2018 and the Complainant confirmed to the Respondent in an exchange of messages via social media that she was suffering from work related stress. The Complainant contends that this medical condition constitutes a disability within the meaning of Section 2(1) of the Employment Equality Acts.

The Complainant submits that she raised a grievance with the Respondent on 13 April, 2018 regarding what she viewed as unfair treatment in respect of the disciplinary warnings and noted in this letter that she did not wish to be stressed at work. However, notwithstanding the above, the Respondent sent the Complainant a message on 13 April, 2018 confirming her dismissal allegedly based on the lowest score in the selection criteria for redundancy. This message alleged that a three-week period prior to the Complainant taking maternity leave had been used for fairness and that the second written warning had not been considered. The Complainant contends that neither of these issues were flagged at the meeting on 9 April, 2018 and she challenges their veracity.

The Complainant submits that she was dismissed with effect from 21 April, 2018 and she claims that this dismissal was discriminatory contrary to Section 8(6) of the Acts on the grounds of her disability and family status.

The Complainant also claims that she was subjected to discrimination on the grounds of family status in relation to her conditions of employment contrary to Sections 8(1)(b) and 8(6)(c) of the Acts in relation to the application of disciplinary warnings following her return to work from maternity leave on 7 March, 2018.

The Complainant further claims that she was subjected to discrimination on the grounds of family status contrary to Sections 8(4) and 8(6)(c) of the Acts regarding the criteria that were applied in relation to her selection for redundancy.

CA-00020609-002 – Complaint under the Organisation of Working Time Act, 1997

The Complainant claims that the Respondent has contravened the provisions of Section 12 of the Organisation of Working Time Act 1997 in relation to rests and intervals at work. The Complainant submits that she worked 8 hours a day and rarely received a rest break. The Complainant claims that she might be allowed to get a cup of coffee/tea if it was quiet but for the most part, there was no set rest period and she was expected to work the full 8 hour day.

CA-00020609-001 – Complaint under the Employment Equality Acts

Issue of Jurisdiction - Incorrect Respondent

The Respondent submits that the Complainant has named the incorrect legal entity of her employer as the Respondent in these proceedings and therefore the Adjudication Officer lacks jurisdiction to investigate the complaints under the Employment Equality Acts and the Organisation of Working Time Act, 1997.

The Respondent submits that the Complainant has named “XXX YYY” as Respondent on the Complaint Form which was referred to the WRC on 11 July, 2018. However, the Respondent contends that the Complainant was employed by Ms. Y, being the owner of the business, which trades as “XXX YYY” but this is not a legal entity. The Respondent submits that the Complainant could have discovered this prior to submitting the claim form by carrying out a search on the Companies Registration Office website. It was therefore submitted that there is no valid complaint form, that any determination made against ‘XXX YYY’ will be unenforceable and that the Complainant is out of time to make a complaint against any other legal entity.

The Respondent relied on the following decisions of the Labour Court in support of its position on this matter, namely: Travelodge Management Ltd. v Wach [2016] ELR 22 and Starrus Eco Holdings v Larkin TUD8/2016.

Issue of Jurisdiction – Scope of the Complaint

The Respondent submits that the Adjudication Officer does not have any jurisdiction to investigate the complaint of discrimination on the grounds of family status under the Employment Equality Acts.

The Respondent contends that the original complaint which was referred by the Complainant to the WRC on 11 July, 2018 under the Employment Equality Acts related to a claim of discrimination on the ground of disability. It was submitted that the Complainant first notified the WRC that she wished to pursue a claim for discrimination on the grounds of family status on 12 November 2019. This was approximately 18 months after her employment concluded and, accordingly, any claim arising from that employment was, by then, statute-barred.

The Respondent referred to the provisions of Section 77(5)(b) of the Employment Equality Acts and submits that the Complainant is too late to seek an extension of time to bring a claim alleging discrimination on the grounds of family status.

It was further submitted that even if the Adjudication Officer was to consider whether to permit the Complainant to amend her Complaint Form at this stage (i.e. almost 2 years after the employment ended) s/he would still have to be satisfied that there was at least a “reasonable cause” for the Complainant’s failure to bring a claim alleging discrimination on the grounds of family status within the statutory time frame. Any other approach would result in a situation where it would be easier to bring a claim in excess of 12 months after the contravention than in the period between 6 and 12 months after the contravention.

The Respondent relied upon the following cases in support of its position on this issue, namely Department of Foreign Affairs EDA116 and Equality Tribunal v County Louth VEC and Brannigan.

Substantive Issue

The Respondent submits that she met with the Complainant on 25 January 2018 to discuss her return to work after maternity leave. The Complainant was reminded during this meeting of her job description, contract terms, policies and procedures as well as start and finish times.

The Complainant was due to return to work on 6 March 2018 and she was rostered to work from 9am to 6pm. On 5 March 2018, the Complainant texted the Respondent to say that she would be in work by “quarter past” as she had to drop one child to school and the other child presumably to a childminder. The Complainant turned up for work on 6 March at 10.15 am and indicated that she now had two children to drop to school/a childminder in the morning and that this was taking more time than dropping one child.

The Respondent submits that it was explained to the Complainant that other employees also had to drop children off in the morning and that it was essential that employees attended work on time so that they were available to customers, to fulfil appointments etc. The Respondent’s Staff Handbook emphasises the importance of timekeeping and punctuality. Notwithstanding this, the Respondent agreed to allow the Complainant to start at a later time of 9.15 am to accommodate the Complainant’s need to drop off her children. The Complainant was not given a warning in relation to this matter as she was adjusting to a new routine.

The Respondent disputes the Complainant’s contention that she was subjected to “far greater scrutiny” upon her return to work after maternity leave. The Respondent submits that on 7 March, 2018 the Complainant did not store the cash away and left it unattended overnight. A verbal warning was given to the Complainant for failing to securely and safely handle the cash at the end of the working day. The Respondent contends that the Complainant’s failure to secure the cash created a risk that the day’s takings could have been lost or stolen. However, it was submitted that the Complainant was dealt with fairly and proportionately on this issue and the Respondent specifically did not seek to dismiss her in relation to this incident, notwithstanding the fact that it could have done so in accordance with the procedures provided for in the staff handbook. The Respondent contends that the Complainant’s work colleague (i.e. the Assistant Manager) who was working alongside her that day was also issued with a similar warning. It was therefore submitted that the Complainant was not treated any less favourably than her colleague in relation to this matter and this warning cannot constitute discrimination on the grounds of her family status.

The Respondent submits that she was advised by her accountants on 28 March, 2018 that a reduction in staff numbers was necessary to reduce existing costs and maintain the viability of the business. The Respondent submits that the Complainant and other staff were called to a meeting on 30 March, 2018 and informed that it would be necessary to implement a redundancy process. At that meeting it was outlined to the staff that a restructuring had been recommended and that this was likely to involve redundancies. The redundancy process was outlined to staff and they were informed that the selection of candidates would be based on the following criteria, namely client retention rate, examination of competence - skills/qualifications, attendance, disciplinary record and client average docket.

The Respondent submits that the Complainant was given a verbal warning on 3 April 2018 for failing to contribute to housekeeping duties. The Complainant took numerous leisure and rest breaks to make phone calls and to have coffee. The Complainant’s failure to contribute to housekeeping meant that other employees had to take up the slack and resulted in those employees doing more than their share of the housekeeping duties.

The Respondent submits that individual meetings were held with four members of staff on 4 April 2018 as part of the redundancy process. At her meeting the Complainant went through a self-appraisal form with the Respondent and her partner. The parties discussed the Complainant’s submissions as well as any areas in which the Complainant felt that she would be able to improve upon and in particular changes that could be made which might assist in improving the financial position of the business. The Respondent met four staff members as part of this process.

The Respondent submits that the Complainant was given a written warning on 7 April 2018 for wearing a green top to work which was in breach of the business’s dress code. The Complainant’s job description specifically states that she must “comply with the company dress code”. The Staff Handbook stated that “[the business] dress code is followed” and further, as one example of gross misconduct - “Arriving to work and not adhering to dress code (black, white, grey) clean professional clothing”. It also states that “Dress code is black white and grey …”.

The Respondent disputes the claim that the Complainant was subjected to discrimination on the grounds of disability. The Respondent contends that it is entirely clear from the chronology of events that the redundancy process was under way for approximately 10 days prior to the Complainant’s attendance with her G.P. on 9 April 2018 and her being certified as “unfit for work” due to stress. The meeting to discuss the Complainant’s competence had occurred five days earlier on 4 April 2018. It was accepted that the Complainant provided the medical certificate to the Respondent on 10 April 2018. The Complainant and Respondent exchanged text messages during which the Complainant confirmed that her stress was work-related, and the Respondent asked if she wanted to come in to talk about it and made it clear that the Complainant could bring someone with her if she wanted to.

The Respondent submits that the Complainant invoked a grievance on 13 April, 2018 and contends it is notable that while she took issue with the warnings she had received she did not express any belief that she was being discriminated against on the basis of her family status, disability or on any other ground.

The Respondent submits the Complainant was notified that she was being made redundant on 13 April 2018. The decision to select the Complainant was made on foot of the meetings which had been held with all staff on 4 April 2018. In comparing the Complainant to her work colleagues, her performance was found to be weak, she had the lowest average docket and her client retention and request rate was disappointing. The written warning given to the Complainant on 7 April 2018 was not taken into account in reaching the decision to make the Complainant redundant and a three-week period prior to her maternity leave was taken into account for comparative purposes.

It is submitted that the Complainant’s attempt to connect her maternity leave to the warnings she received is mere supposition and speculation. It is further submitted that the Complainant’s failure to make reference to a discrimination claim under the family status heading in her Complaint Form, further supports the contention that this was an afterthought and that neither she nor her legal representatives attributed her redundancy to any such discrimination at the time she was made redundant.

The Respondent denies that the Complainant’s stress (without accepting that it constitutes a disability within the meaning of Section 2(1) of the Act) was a material factor in the decision to make her redundant. It was submitted that the Respondent first became aware of the Complainant’s purported disability on 10 April 2018 having commenced the redundancy process on 30 March 2018. Without making any admissions in this regard, it was submitted that any purported stress was a by-product of the redundancy process rather than the redundancy being a consequence of the Complainant’s disability.

It was submitted that a redundancy process is inherently stressful to all employees whose positions are at risk of redundancy. If an employer is found to have discriminated against an employee who furnishes a medical certificate indicating that s/he is suffering from stress, then every redundancy process could be frustrated by any employee who fears that they will be selected for redundancy and therefore submits a sick certificate evidencing that. It was submitted that the fact the Complainant was dissatisfied with the outcome of the redundancy process does not make that process discriminatory.

The Respondent denies that the Complainant was subjected to discriminatory treatment of discriminatory dismissal on the grounds of her purported disability and/or family status. The Respondent submits that the Complainant’s selection for redundancy was fair following the completion of an objective and transparent selection process and was in no way connected to her purported disability and/or family status.

The Respondent relied upon the following cases in support if its position, namely: Dublin Corporation v Gibney EE5/1986; Minaguchi v Wineport Lakeshore Restaurant DEC-E2002-020; Mary Margetts v Graham Anthony & Company Limited EDA038; Apparel Supply Solutions (formerly Teamkit Limited) v Sandra Mullen EDA416; Wach v Travelodge Management Limited DEC-E2014-055; Tesco Ireland v Walsh DEE062; Morgan v Bank of Ireland DEC-E2008-029; Houses of the Oireachtas v Thomas Hickey EDA1918; Chacon Navas v Eurest C-13/05; Jette Ring v Danske C-355-11; St Ledger v Frontline Distributors Ireland Limited [1995] ELR 160; Watling & Co. Limited v Richardson (1978) EAT 774/77; Williams v CompAir Maxam Limited [1982] 1 ICR 156; Rolls Royce Motors Limited v Dewhurst [1985] IRLR 184.

CA-00020609-002 – Complaint under the Organisation of Working Time Act, 1997

The Respondent denies the claim that the Complainant was not provided with rest breaks during her period of employment contrary to Section 12 of the Organisation of Working Time Act, 1997. The Respondent submits the Staff Handbook provides that during the working day that employees are allowed a 20-minute morning tea break and a half hour or one hour lunch break which is decided by the salon manager based on customer requirements. The Respondent submits that the Complainant was always allowed to take her rest breaks during her period of employment and records were submitted in evidence in relation to the rest breaks which she took during March and April, 2018.

CA-00020609-001 – Complaint under the Employment Equality Acts

Jurisdictional Issue – Name of Respondent

The first issue that I must decide relates to the jurisdictional issue raised by the Respondent as to whether or not the Complainant has pursued the incorrect entity as the Respondent in these proceedings.

The Respondent submits that the Complainant has referred the complaint against the trading name of the business (XXX YYY) and contends that the correct identity of her employer was Ms. Y. The Respondent submits that the Complainant has therefore pursued the incorrect Respondent and is now statute barred in her claim.

The Complainant contends that her employer was fully aware of this complaint at all material times and she sought leave to amend the name of the Respondent to that of the correct legal entity which had employed her, namely Ms. Y.

Therefore, the question I must decide is whether or not it is legally permissible for me to accede to the Complainant’s application to substitute the correct respondent in this case. In considering this issue, I have taken cognisance of the Labour Court case of Auto Depot Limited -v- Vasile Mateiu UDD1954. In this case the Complainant, Mr. Mateui, made an application in the course of proceedings before the Labour Court under the Unfair Dismissals Act to amend the name of the Respondent from “Auto Depot Tyres Ltd” to “Auto Depot Ltd”. The Court allowed the request for the amendment and in doing so held that: “Accordingly, the Court considers the erroneous inclusion of ‘Auto Depot Tyres Ltd’ on the WRC complaint form to be no more than a technical error. The Court is fully satisfied that the Respondent’s name can simply be amended on the paperwork to reflect its correct legal title, that of ‘Auto Depot Ltd’”.

The Labour Court, in this case, provided an extensive analysis of the jurisprudence and relevant authorities on this subject and set out a number of factors which it took into consideration in arriving at its decision on this matter. In particular, I have taken cognisance of the following paragraphs from the decision: “Having regard to the foregoing and relying in particular on the High Court decision in Capital Food Emporium, the Court is fully satisfied that the correct employer has been pursued by the Complainant. The Court is further fully satisfied that the respondent party that appeared before the Court was the Complainant’s employer. That party was fully aware of the Complainant’s complaints to the WRC from July 2017. He knew precisely from whom the complaints were and to what the complaints referred. The respondent party has had a full opportunity to be heard and to answer those complaints. The Court is therefore equally satisfied that the employer will suffer no prejudice or injustice by its decision on this preliminary matter.

In arriving at this conclusion, the Court is also conscious of the High Court Judgment in O’Higgins -v- University College Dublin & Another (2013) 21 MCA wherein Mr Justice Hogan held: “Even if the wrong party was, in fact, so named, no prejudice whatever was caused by reason of that error (if, indeed, error it be) …. In these circumstances, for this Court to hold that the appeal was rendered void by reason of such a technical error would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts.”

Declining jurisdiction in these circumstances would certainly amount to a “grossly disproportionate response” as envisaged in O’Higgins.

The Court is further satisfied that this approach is in line with the generally accepted principle that statutory tribunals, such as this Court, should operate with the minimum degree of procedural formality consistent with the requirements of natural justice. On that point the decision of the Supreme Court in Halal Meat Packers (Ballyhaunis) Ltd v Employment Appeals Tribunal [1990] I.L.R.M 293 is relevant. Here Walsh J stated, albeit obiter, as follows: - “This present case indicates a degree of formality, and even rigidity, which is somewhat surprising. It is a rather ironic turn in history that this Tribunal which was intended to save people from the ordinary courts would themselves fall into rigidity comparable to that of the common law before it was modified by equity.”

I am satisfied that the general principles enunciated by the Labour Court in the Auto Depot Limited case can also be applied in the circumstance of the instant case. In considering this matter, I have taken the following factors into consideration:

·       The Complainant has named the trading name of her employer as the Respondent in these proceedings as opposed to the actual name of the person who employed her. The Courts have held in a number of cases, that statutory adjudicative bodies should not adopt a more stringent procedural approach than that adopted in ordinary litigation. Consequently, since a party can initiate proceedings in the High Court using a business name, it would be inconsistent with the informal and accessible nature of the procedures set out under the Workplace Relations Act 2015 and Employment Equality Acts to hold that proceedings cannot be similarly initiated under those Acts.  

·       I am satisfied that the Complainant’s employer was fully on notice and accepted these proceedings from the outset. The notification of these complaints was sent by the WRC to Ms. Y at her business address on 20 July, 2018. In the circumstances, I am satisfied that the Complainant’s employer was fully informed as to the precise nature of the complaints from the outset of these proceedings.

·       The parties were initially notified on 8 August, 2019 of a hearing date before an Adjudication Officer on 12 September, 2019. I note that Ms. Y acknowledged receipt of this letter and made an application to the WRC for a postponement of the hearing by way of e-mail dated 22 August, 2019. This application was granted by the WRC and a further hearing date was notified to the parties by letter dated 8 October, 2019. I further note that Ms. Y was in attendance at the hearing on 12 November, 2019 and sought a further postponement of the hearing on this date in the circumstances that have been set out earlier in this decision. Ms. Y did not raise any issue about the incorrect Respondent until a written submission was forwarded to the WRC by her legal representative on 14 January, 2020.

·       Ms. Y appeared at the rescheduled hearing with her legal representatives on 25 February, 2020 and was fully prepared to defend the complaints which had been initiated by the Complainant. I am satisfied that Ms. Y was not prejudiced in any way in terms of her ability to defend the instant proceedings as a result of the mis-statement of the name of the Respondent on the initiating form for these complaints.

Having regard to the foregoing, I am satisfied that the correct employer has been pursued in relation to these complaints and that the mis-statement by the Complainant of her employer’s name on the Complaint Referral Form constitutes a technical error. Moreover, I am satisfied that the Complainant’s employer was fully aware of the existence and details of the instant complaints from 20 July, 2018. I take the view that if I were to decline jurisdiction in the pertaining circumstances that it would clearly amount to a “grossly disproportionate response” as envisaged by the High Court in the case of O’Higgins -v- University College Dublin & Another (2013) 21 MCA. In the circumstances, I find that the Respondent’s name can be amended to reflect its correct legal title.

Issue of Jurisdiction – Scope of the Complaint

The second jurisdictional issue which I must address relates to the Respondent’s contention that certain elements of the instant complaint under the Employment Equality Acts are inadmissible on the basis that they are outside of the scope of the initial complaint which was referred to the Director General of the WRC. The Respondent contends that the claim of discrimination on the grounds of family status which was first referenced in the Complainant’s written submission which she submitted to the WRC on 12 November, 2019 were not included in the initial Complaint Referral Form which was submitted on 11 July, 2018. The specific elements of the complaint which the Respondent contends are inadmissible relate to the following claims:

1)      The claim that the Complainant was discriminatorily dismissed on the grounds of her family status contrary to Section 8(6)(c) of the Acts.

2)      The claim that the Complainant was subjected to discrimination on the grounds of family status in relation to her conditions of employment contrary to Sections 8(1)(b) and 8(6)(c) of the Acts in relation to the application of disciplinary warnings following her return to work from maternity leave on 7 March, 2018.

3)      The claim that the Complainant was subjected to discrimination on the grounds of family status contrary to Sections 8(4) and 8(6)(c) of the Acts regarding the selection criteria that were applied in relation to her selection for redundancy.

In considering this issue, I note that the circumstances in which a Complainant can subsequently amend an original claim were considered by the High Court in the case of the Louth VEC v The Equality Tribunal [2009] IEHC 370 in which McGovern J. held as follows at paragraphs 6.2 and 6.3:- “I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint remains the same."

I further note that in his Judgment in Clare County Council v Director of Equality Investigations [2011] IEHC 303 Hedigan J. stated:- "It is clear from the foregoing that because the EE1 form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise or alternatively given adequate time to answer there can be no injustice therein.”

In the Supreme Court case of County Louth VEC v Equality Tribunal[2016] IESC 40 it was held by Mckechnie J. that:“Therefore, when considering the substantive issue, it must be remembered that the Tribunal inquires into referred incidents of discrimination: it looks at prohibited conduct of which it is notified. It has no function in a situation such as this to embark upon a wide-ranging inquiry into discrimination generally, or to generally investigate such discrimination; it does not conduct investigations proprio motu into discrimination which has not been the subject of a statutory referral to the Tribunal. Rather, it determines what lawfully has been referred to it with a view to providing redress to that applicant for any discrimination as found. The Tribunal cannot as such freelance its inquiry.”

It is clear from this jurisprudence that a complainant is not precluded from amending his or her original claim so long as the general nature of the complaint remains the same. In the circumstances, the question that I must decide is whether the inclusion of the claims of discriminatory dismissal and discriminatory treatment in relation to conditions of employment on the grounds of family status which were set out in Complainant’s written submissions dated 12 November, 2019 constituted the furnishing of further and better particulars in relation to the her initial claim or if these matters constitute entirely different complaints than that, which had been made in the original complaint.

I note that it was indicated on the Complaint Referral Form which the Complainant submitted to the WRC on 11 July, 2018 that her complaint related to discrimination and she ticked the check box for the “disability” ground and “Dismissing me for discriminatory reasons”. The Complainant further indicated in the section of the Form which allows for the provision of the specific details in relation to the complaint that: “I say that I was dismissed from my employment when I was absent due to work related stress. I say that my employer was aware I was absent due to stress. I say that stress is a disability and that as I was dismissed from my employment when I was suffering from this disability, I have been discriminated against.”

It is clear that the initial complaint which was referred to the WRC on 11 July, 2018 under the Employment Equality Acts related specifically to a claim in relation to discriminatory dismissal. I accept that the Complainant did not make any specific reference to the “family status” ground in the context of this claim in the initial complaint referral. However, I am satisfied that the broad nature or generality of the complaint of discriminatory dismissal was set out therein and that the Complainant provided further particulars or clarification in relation to this specific complaint by way of the written submissions which were provided subsequently. The Respondent was afforded an opportunity to respond to this submission and address the complaint of discriminatory dismissal in its entirety during the course of the proceedings. In the circumstances, I am satisfied that the Respondent has not been prejudiced in any manner in relation to its ability to defend the complaint of discriminatory dismissal by virtue of the Complainant’s reliance upon the family status ground. In the circumstances, I find that I do have jurisdiction to investigate the complaint of discriminatory dismissal on the grounds of disability and family status.  

However, I also find that the other claims of discrimination stated at 2) and 3) above which were outlined in the Complainant’s written submission constitute entirely different complaints than that, which had been made in the original complaint (on 11 July, 2018). In applying the dicta of MacMenimin J. in the County Louth VEC case it is clear that the jurisdiction of an Adjudication Officer when investigating a complaint under the Acts only relates to incidents of discrimination which have been referred or notified to the WRC by the Complainant and does not extend to the conduct of a “wide ranging inquiry” into discrimination generally. In the circumstances, I find that these additional claims of discrimination go beyond the furnishing of further and better particulars in relation to the Complainant’s initial claim of discriminatory dismissal and constitute new complaints which had not been included in the initial referral.

The question then turns to the issue as to whether the claims of discriminatory treatment outlined in the Complainant’s written submission can be accepted as a valid claim in their own right which is admissible under the Acts. In considering this issue, and as I have already adverted to above, the Complaint Referral Form is not a statutory form and therefore, a complainant is not legally obliged to use this form when referring a complaint to the Director General. I am satisfied that the nature of the claims of discriminatory treatment are clearly set out by the Complainant in this document and in the circumstances, I accept that these claims are capable of constituting a new complaint within the meaning of the Employment Equality Acts. However, in order for these new claims to be deemed admissible they must comply with the time limits provisions contained within section 77(5) of the Acts which provides:

“(5) Subject to subsection (6), 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 or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

(b) On application by a complainant the Director or Circuit Court, as the case may be, may, for reasonable case direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substitutes a reference to such period not exceeding 12 months as is specified in the direction”.

The effect of these provisions is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Director General. This period can be extended to twelve months in accordance with the provisions of section 77(5)(b) in circumstances where the Complainant can demonstrate that there was “reasonable cause” which prevented him/her from referring the complaint within the prescribed time limits.

The additional claims of discriminatory were received by the Director General on 12 November, 2019 and it is clear from the documentation and evidence adduced that the alleged occurrences of discrimination in relation to these matters took place on dates between 7 March, 2018 (when the Complainant returned to work after maternity leave) and 11 July, 2018. Having regard to the foregoing, it is clear that the aformentioned alleged occurrences of discrimination fall outside of the statutory time limits provided for in Section 77(5) of the Acts. Accordingly, I find that I do not have jurisdiction to investigate these additional claims of discriminatory treatment.

Substantive Issue – Discriminatory Dismissal

In the circumstances, the scope of my investigation in the instant complaint is confined strictly to the Complainant’s claim of discriminatory dismissal on the grounds of disability and family status contrary to Section 8(6) of the Acts.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her.   If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary. The Labour Court has held consistently 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 the Respondent.   In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent.

I heard oral extensive oral evidence from the Complainant and the Respondent (Ms. Y) and both parties were afforded the opportunity to examine and cross-examine each other’s evidence as part of the hearing.

In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the Hearing.

Discriminatory Dismissal on Disability Ground

The first issue that I will consider relates to the claim of discriminatory dismissal on the grounds of disability. Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where “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) ...”. Section 6(2)(g) of the Acts defines the discriminatory ground of disability as follows – “as between any 2 persons, ...   that one is a person with a disability and the other either is not or is a person with a different disability”.

The definition of disability in Section 2(1) of the Acts is as follows:

“disability” means—

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person”.

It is necessary to determine at the outset whether the condition from which the Complainant suffered was a disability within the meaning of Section 2(1) of the Acts. It was not in dispute between the parties that the Complainant had been diagnosed by her General Practitioner as suffering from stress at the material time in question relevant to this complaint.

The Employment Equality Act transposes EU Directive 2000/78/EC. While the Directive does not define disability, the European Union has approved the definition of disability set out in the UN Convention on the Rights of Persons with Disabilities. This provides that disability is an evolving concept and arises “from the interaction between persons with impairments and attitudinal and environmental barriers” that hinders their full and effective participation in society on an equal basis with others. Article 1 of the Convention sets out that persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments. The Court of Justice of the European Union has held that a disability must be long-term (see the HK Danmark cases (C-335 and 337/11).

The definition of a disability has been interpreted in a broad manner and I note that there is established precedent from the Labour Court that anxiety and stress can fall within the definition of disability under the Acts under certain circumstances. In considering the definition of disability in the Employment Equality Acts, I note that the Labour Court held in the case of A Government Department -v- A Worker EDA094 that: “The Court must take the definition of disability as it finds it. Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of Ireland v Purcell [1989] IR 327). Nevertheless, no statute can be construed so as to produce an absurd result or one that is repugnant to common sense. That common law rule of construction has now been given statutory effect by s.5(1) of the Interpretation Act 2005. It would appear to the Court that if the statute were to be construed so as to blur the distinction between emotional upset, unhappiness or the ordinary human reaction to stressful situations or the vicissitudes of life on the one hand, and recognised psychiatric illness on the other, it could be fairly described as an absurdity.”

In relation to the definition of disability the Labour Court noted that “it is expressed in terms of the manifestations or symptoms produced by a particular condition, illness or disease rather than the taxonomy or label which is to be ascribed thereto. Further, the definition does not refer to the extent to which the manifestations or symptoms must be present. However, a de minimis rule must apply and effects or symptoms, which are present to an insignificant degree, would have to be disregarded. Moreover, the classification of a condition, illness or disease as a disability is not limited by its temporal affect on the sufferer. This is clear from the definition which provides that it: - “shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person””.

The Labour Court also held in the case of Health Service Executive North West -v- Patricia Cullen Killoran EDA1830 that: “While disability is broadly defined by the Acts each of the examples given in the Acts relate to malfunctions or abnormalities of the mind or the body. Stress caused by illness of a relative or loved-one is not an abnormality or malfunction. Rather, it is a normal human condition, not classified as abnormality or malfunction, and therefore not a disability within the statutory meaning ascribed to that term.”

In the instant case, the Complainant adduced evidence that she suffered from “work related stress” arising from the manner in which she alleged to have been treated in the workplace by the Respondent and she contends that her medical condition amounted to a disability within the meaning of Section 2(1) of Acts. I note that the Complainant did not adduce any evidence to suggest that she had a previous history of mental health or stress related illnesses during her period of employment with the Respondent prior to April, 2018 when she went absent from work on certified sick leave. The only medical evidence which the Complainant adduced in evidence in support of her claim that she had a disability was two medical certificates from her GP which indicated that she was unable to attend work 9-16 April, 2018 and 16-23 April, 2018 as she was suffering from “stress”.

In applying the reasoning of the Labour Court in the Killoran case, I am satisfied that I have not been presented with any medical evidence from which I could reasonably conclude that the stress which the Complainant was experiencing at the material time in question occurred as a result of an abnormality or malfunction, being either temporary or permanent in nature. Having regard to the totality of the evidence adduced, I find that the Complainant’s medical condition does not constitute a disability within the meaning of Section 2(1) of the Acts. Accordingly, I find that the Complainant was not subjected to discrimination by the Respondent on the grounds of disability contrary to the Acts.

Discriminatory Dismissal on Family Status Ground

The final issue that I must decide relates to the Complainant’s claim that she was subjected to a discriminatory dismissal on the grounds of her family status. Section 6(2)(c) of the Acts defines the discriminatory ground of family status as follows: – “as between any 2 persons, ... that one has family status and the other does not”.

“Family status” is defined in Section 2(1) of the Acts as follows:

                      “(a) as a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

                      (b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,

                      and, for the purposes of paragraph (b), a primary carer is a resident primary carer in relation to a person with a disability if the primary carer resides with the person with the disability”.

In accordance with the definition of “family status” in the Acts a person can be regarded as having family status under either paragraph (a) or (b) of the relevant provision. In terms of subsection (a), which is the relevant provision in the context of the instant case, a person can claim family status as a parent or person in loco parentis. Therefore, in terms of a claim of direct discrimination the Complainant who has family status can only compare herself with someone who does not have family status.

The Complainant has identified Ms. A as the relevant comparator for the purpose of this element of her complaint. It was not in dispute between the parties that Ms. A was also employed by the Respondent as a Hair Stylist at the material time in question and that she did not have children. It was also common case that the Complainant was the parent of two young children and that she had returned to work on 7 March, 2018 following a period of maternity leave. The Complainant claims that she was treated less favourably than Ms. A who was also subject to the redundancy selection process but was subsequently retained in employment by the Respondent following its conclusion. The Complainant contends that Ms. A did not have children and was not on maternity leave during the period prior to the redundancy selection process and therefore was treated more favourably than her in relation to the application of the selection criteria used in the process. The Complainant has also maintained that the Respondent imposed unwarranted disciplinary sanctions against her following her return to work following maternity leave in March, 2018 and that these disciplinary issues had a bearing on her selection for redundancy.

The Respondent contends that it was necessary to restructure the business due to financial constraints at the material time in question which resulted in the requirement to reduce staff numbers in order to ensure its future viability. The Respondent contends that the Complainant was made redundant as a result of this restructuring following the conclusion of an open and transparent redundancy selection process. The Respondent does not dispute that Ms. A performed like work to the Complainant and that she was retained in employment following the selection process. Having regard to the evidence adduced, I am satisfied that a presumption of discrimination is within the set of inferences which can reasonably be drawn from the facts of this case. Accordingly, I find that the complainant has succeeded in raising a prima facie case of discrimination and therefore, the burden of proof shifts to the Respondent.

The Labour Court held in the case of Niscayah Limited v Rachel McCarthy EDA1328 that: “Where a prima facie case is made out the onus shifts to the Respondent to prove the absence of discrimination. This requires the Respondent to show a complete dissonance between the protected characteristic relied upon (in this case family status) and the impugned act or omission alleged to constitute discrimination. In Wong v Igen Ltd and others [2005] IRLR 258 (a decision of the Court of Appeal for England and Wales) Peter Gibson L.J. pointed out that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out. In practice the Court will look to the Respondent to shown that the protected characteristic relied upon had no material influence whatsoever in arriving at the impugned decision.

The decision of the UK Employment Appeals Tribunal in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332, is authority for the proposition that where the burden of proof rests on the Respondent a Court should normally expect cogent evidence to discharge that burden since the facts necessary to prove a non-discriminatory explanation would normally be in the possession of the respondent.”.

The Respondent adduced compelling evidence, both oral and documentary, in relation to the restructuring process and the reasons therefor which were implemented by the business and the consequent requirement to reduce staff numbers at the material time in question. Having regard to the evidence adduced, I am satisfied that that there was a genuine redundancy situation within the Respondent’s business at the material time of the Complainant’s dismissal. It was not in dispute that the Respondent subsequently conducted a redundancy selection process and that there were four candidates, including the Complainant, whose positions were taken into consideration during the course of the process. These staff members consisted of the Complainant, Ms. A and two others, one of whom was also a parent. It is clear that the latter staff member also had the same family status as the Complainant and was retained in employment following the conclusion of the redundancy selection process. The Respondent adduced evidence that it used reasonable and objective criteria based on the previous work performance of the four candidates in order to select the candidate for redundancy. The Respondent contends that the Complainant was ultimately selected on the basis that her work performance was deemed to be weaker than that of her three colleagues on application of the redundancy selection criteria.

It is clear that the instant complaint relates to a claim of discriminatory dismissal and therefore, I do not have any jurisdiction under the Acts to decide upon the fairness or otherwise of the selection of the Complainant for redundancy. The issue that I must decide in the context of the complaint of discriminatory dismissal is whether or not the redundancy selection process which ultimately led to the Complainant’s dismissal was attributable to, or influenced by, the fact of her family status.

Having carefully considered the evidence adduced by both parties on this matter, I am satisfied that the fact of the Complainant’s family status or her having been on maternity leave prior to the material time in question were not factors which were taken into consideration by the Respondent or which influenced in any manner her selection for redundancy. In the circumstances, I find that the Complainant’s employment was terminated by the Respondent for reasons unconnected with her family status. Accordingly, I find that the Respondent has rebutted the inference of discrimination raised by the Complainant.

CA-00020609-002 – Complaint under the Organisation of Working Time Act, 1997

The Complainant’s employment was terminated on 21 April, 2018 and she referred her complaint under the Organisation of Working Time Act 1997 to the Workplace Relations Commission on 11 July, 2018. By application of the time limit provided for at Section 41(6) of the Workplace Relations Act 2015 the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the WRC. Therefore, the cognisable period covered by the complaint is the six-month period from 12 January, 2018 to 11 July, 2018.

The Complainant has claimed that she was not afforded her statutory entitlements to rests breaks at work as provided for in Section 12 of the Act. Section 12 provides as follows:

12.— (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

Section 25(1) of the Act requires an employer to maintain records, in a prescribed form, showing compliance with the Act. Section 25(4) provides as follows: -

“(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.”

The Labour Court in the case of Jakonis Antanas -v- Nolan Transport DWT1117 set out the requirements in relation to the evidential burden of proof that applies in establishing whether or not a contravention of the Act has occurred. It held that: “This suggests that the evidential burden is on the claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that, as a matter of basic fairness, the claimant should be required to do so with sufficient particularity as to allow the respondent to know, in broad terms, the nature of the complaint and the case which they are expected to meet. As was pointed out by Lord Devlin in Bratty v Attorney General for Northern Ireland [1963] A.C. 386 an evidential burden is satisfied where the evidence adduced is sufficient to “suggest a reasonable possibility”.

The respondent should then be called upon to put the records required by s.25(1) of the Act in evidence showing compliance with the relevant provision in issue. If records in the prescribed form are produced the legal burden will be on the claimant to satisfy the Rights Commissioner, or the Court on appeal, that the records ought not to be accepted as evidence of compliance. Thus, the claimant will bear both the evidential and the legal burden of proving, on the balance of probabilities, that his or her rights under the Act were contravened in the manner alleged. If the claimant fails to discharge that burden, he or she cannot succeed.”

The Complainant adduced evidence that she was informed by the Respondent that breaks “were not a thing” and that she was not allowed to take her statutory rest breaks during her period of employment. The Complainant stated that she was allowed to purchase a coffee or sandwich from a nearby shop at break time but was required to immediately return to the workplace and consume same while continuing to work.

The Respondent disputed the Complainant’s evidence on this matter and stated that all employees, including the Complainant, were required to take their rest breaks in accordance with their statutory entitlements. The Respondent produced records of the time sheets in the prescribed form and signed by the Complainant for the period of March and April, 2018 which indicate that she did in fact take her statutory rest breaks. The Complainant accepts that she signed these timesheets but contends that she was not afforded the rest breaks which were recorded therein.

Having regard to the evidence adduced, I have found the Respondent’s evidence in relation to this matter to be more compelling and I do not accept the Complainant’s contention that she was not afforded her statutory rest breaks during her period of employment. In the circumstances, I find, on the balance of probabilities, that the Respondent has satisfied the legal burden of proving that the provisions of Section 12 of the Act were not contravened in the manner alleged by the Complainant. Accordingly, I find that the complaint is not well founded.

CA-00020609-001 – Complaint under the Employment Equality Acts

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I find that the Complainant was not discriminatorily dismissed by the Respondent on the grounds of disability and/or family status contrary to Section 8(6) of the Acts. Accordingly, I find in favour of the Respondent.

CA-00020609-002 – Complaint under the Organisation of Working Time Act, 1997

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the Respondent did not contravene the provisions of Section 12 of the Organisation of Working Time Act, 1997 and that the complaint is not well founded.

Employment Equality Acts, 1998 to 2015 – Jurisdiction – Disability Ground – Family Status Ground – Conditions of Employment – Section 8 – Redundancy - Discriminatory Dismissal – Organisation of Working Time Act, 1997 – Section 12 – Rest Breaks