Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Representatives

  Self-Represented

Owen Keany B.L. instructed by Kane Twohy LLP, Solicitors

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-00064498-001

02/07/2024

On the 2nd July 2024 the Complainant referred a complaint to the WRC wherein he claimed that that he was subjected to discriminatory treatment by the Respondent on the grounds of his age. The Respondent denied that the Complainant was treated in a discriminatory manner or in a manner which contravened the provisions of the Employment Equality Acts. Furthermore, it submitted that the Complainant was not dismissed by the Respondent rather he resigned from his employment by letter dated the  25th May 2024.

Direct Evidence of the Complainant

The Complainant gave evidence that a distressing incident occurred on the 23rd May 2024 which left him with no option but to resign from his employment with the Respondent.

He stated that on the 23rd May 2024 he asked permission to leave work early due to a personal family situation. His daughter had requested to meet him to discuss a family concern. He was given permission to leave by Mr. W.

While he was waiting for his daughter in a public place his manager, Mr. McG, appeared beside him having followed him from his place of work. The Complainant stated that Mr. McG confirmed that he had followed him. In front of other customers and staff Mr. McG then proceeded to inform the  Complainant that he would be inviting him for a meeting to discuss the requested absence. Mr. McG spoke about the Complainant’s personal information including how he spent his rest periods and stated that other member of the Respondent’s staff had issues with him. The conversation was said in a raised voice and everyone on the premises heard the full encounter. The Complainant was left shocked and unable to respond. The Complainant did not understand why Mr. McG or Mr. W were stating that they had a concern for his safety as they would have known that the Complainant was not on the premises because his locker was closed. He stated that he was given permission to leave work early so what he did on his own time was his business.

The Complainant was on approved leave the following day, 24th May 2024. He called into his workplace, cleared out his personal belongings and left the Respondent’s property along with a note of resignation on Mr. W’s desk. The Complainant stated that he felt he had no alternative but to resign having experienced the distress, hurt and embarrassment from the day before.

Cross Examination of the Complainant

Under cross-examination the Complainant acknowledged that he had known Mr. McG and Mr. W for over 30 years. He did not accept that they had cause to be concerned about the Complainant’s safety. He acknowledged that an opportunity with the Respondent came up in March 2021 and that Mr. McG helped the Complainant secure the job. It was accepted that he performed a health and safety critical role and he worked as part of a team. The Complainant acknowledged that he signed his contract of employment which made reference to unauthorised leave, the Employee Handbook, a grievance procedure and a Dignity at Work policy. The Complainant acknowledged that he received the Employee Handbook and recalled that it was available on the Respondent’s premises and that he read through it on a number of occasions. The Complainant stated that he was aware of the Respondent’s grievance procedure having made a verbal complaint in 2022 and 2023. He confirmed that in May 2024 he did not make a complaint under the Dignity at Work policy or the grievance procedure.

According to the Complainant around 5:30pm a conversation took place between himself and Mr. W. Mr. W informed the Complainant that he could leave after particular tasks were completed. After the tasks were completed the Complainant left to meet his daughter to discuss a personal family matter before returning home.

The Complainant felt aggrieved about the manner in which he was treated on the 23rd May 2024 but stated that it was more about bullying than age and that he was victimised and bullied but not because of his age. The Complainant was not happy that Mr. McG followed him to the pub and confronted him during his free time. He stated that there was no reason to inform Mr. W or Mr. McG that he was going to the pub and that it was a surprising and embarrassing moment for him.

The Complainant did not speak to Mr. W on the 24th or 25th May 2024 he just left the letter of resignation on his desk. He was advised by the citizens advice centre not to take any telephone calls from the Respondent after his resignation.

Direct Evidence of Mr. H

Mr. H gave evidence on behalf of the Complainant. He was the manager of the pub where the Complainant had arranged to meet his daughter and he was working on the 23rd May 2024. He stated that at approximately 6.15pm a man came into the pub and started talking to the Complainant in a raised voice. He overheard the man inform the Complainant that “the lads don’t want to work with you anymore” and that the Complainant needed to “get his act together” and to “take a few days to think about things”.

Cross-examination of Mr. H

Under cross-examination Mr. H stated that he could not speak to what Mr. McG was thinking when he found an employee mid-shift in the pub only that he had a customer who was upset following the conversation.

Direct Evidence of Mr. McG

Mr. McG gave evidence that he was employed by the Respondent in a managerial capacity. He had known the Complainant for 35 years as they shared a common interest.

The Complainant’s first period of employment with the Respondent began in 2002. This was a seasonal position, running from March to October each year. The Complainant remained in that position until 2011 when he left for health-related reasons.

In or around 2021, Mr. McG was aware that the job the Complainant was working on was coming to an end and that when it did he would have no work. At the suggestion and urging of Mr. McG, the Complainant was invited to return to employment with the Respondent after being medically cleared to do so and he took up a position with the Respondent that year.

Throughout the period of his employment, the Respondent and its management approached the Complainant with flexibility and accommodation, as was the case for all employees. When the Complainant required time off, this was, wherever possible, facilitated. He was considered a valued member of the team.

Mr. McG was involved in a full review of the Respondent’s Employee Handbook. The Respondent’s comprehensive Employee Handbook includes an Equal Opportunities Policy which expressly recognises that “discrimination is unacceptable and although equality of opportunity has been a long-standing feature of our employment practices and procedures, we have made the decision to adopt a formal equal opportunities policy. Breaches of the policy will lead to disciplinary proceedings and, if appropriate, disciplinary action”. That policy, along with the Dignity at Work Policy and others, make clear that the Respondent will not under any circumstances tolerate discriminatory treatment of its staff members and that a clear mechanism exists for raising such concerns, ensuring that they are investigated and addressed comprehensively. Mr. McG was entirely taken aback by the Complainant’s assertion that he was subjected to discriminatory treatment on the grounds of his age because he never raised any concern under the above policies despite the Complainant having access to the Employee Handbook. Mr. McG stated that if the Complainant had raised a concern the Respondent would have followed through with the process set out in the relevant policy. 

Mr. McG stated that on the 23rd May 2024 around 5:30/6:00pm, while he was off duty, he was approached by Mr. W who said that the Complainant could not be found. McG denied that he followed the Complainant to the pub. He was not aware of the Complainant’s current medical status but a missing person along a quay wall pier was concerning. When it had become clear that the Complainant was no longer on the premises, Mr. McG went looking for the Complainant. He decided to walk to the Complainant’s home and, en route, to check the pub which he knew the Complainant frequented. Mr. McG found the Complainant in the pub. He expressed his disappointment at the Complainant’s actions. The Complainant asked if he was “fired” and Mr. McG explained that he was not and that he would have a conversation with the Complainant upon the Complainant's return to work on the 25th May 2024 as the Complainant was scheduled to be on leave on 24th May 2024. As the conversation concluded, the Complainant asked Mr. McG if he would join him for a pint. Mr. McG declined. Mr. McG disputed that he was shouting at the Complainant stating that he was less than three feet away from the Complainant and the pub was not busy so there was no need to shout. Mr. McG was aware that the Complainant had personal business to attend to the following day so he wished him good luck and he went back to the Respondent’s premises to stand in for the Complainant.

Mr. McG was informed by Mr. W by text message that the Complainant had gone into work on the 24th May 2024 and left a resignation letter dated the 25th May 2024. The Complainant did not turn up for his shift on Saturday the 25th May 2024. Sunday and Monday were the Complainant’s days off. When he did not come into work on Tuesday Mr. McG reached out to the Complainant to check that he was okay and he invited him to have a conversation about the events of the 23rd May 2024. The Complainant informed Mr. McG that he was happy with his decision to resign. Mr. McG stated that the Complainant made no attempt to invoke the Respondent’s grievance procedure prior to resigning and he did not express any grievance during their conversation. Mr. McG was shocked when he received the letter from the WRC enclosing the complaint form as he did not know it was coming.

Mr. McG stated that on the 23rd May 2024 he had a genuine concern for the Complainant. Mr. McG and Mr. W were looking for the Complainant, he was missing and he was a friend whom he had known for 35 years. There was a previous incident where the Complainant was taken to hospital in an ambulance when he collapsed on the Respondent’s premises and safety was paramount given the nature of the Respondent business. Mr. McG was aware that the Complainant’s partner was going through a stressful time and that the Complainant was worried and tired. Mr. McG was off duty when Mr. W came to him to say the Complainant could not be located. Mr. McG had a genuine concern for the safety and welfare of an employee and a friend and it was for that reason that he went looking for him.

Direct Evidence of Mr. W

Mr. W gave evidence that he was employed by the Respondent and had known the Complainant for 30 years as they shared a common interest.

Mr. W usually worked the early shift but on Thursdays he worked long days. On the 23rd May 2024, at approximately 12:40 p.m., the Complainant asked Mr. W if he could go home to check on his partner who was struggling following the death of her mother. Mr. W agreed and offered to give the Complainant a lift home. The Complainant declined this offer and said he would take public transport. The Complainant's daughter subsequently contacted the Complainant to say that his partner was okay and so the Complainant remained at work.

On the day in question a weekly event was due to take place and weather conditions were poor, all of which were likely to place an added pressure on the Respondent’s team.

Later that day, the Complainant again asked Mr. W if he could leave early to check on his partner. Mr. W stated that he could not make the call at that time but said he would consider the Complainant's request as the day progressed. It was a very busy period at the Respondent where all staff were needed. Over the course of the day, once it had become clear that the team could manage in his absence, Mr. W was intent on allowing the Complainant to go home early however he never got to have that conversation with the Complainant.

Mr. W denied that he informed the Complainant that he had permission to leave after particular tasks were completed. He stated that the conversation could not have taken place because the Complainant was carrying out his duties on the ground while Mr. W was up in a crane. When Mr. W came out of the crane he enquired about the Complainant’s whereabout and no one knew where he was. He was concerned for the Complainant’s safety so he went to find Mr. McG to inform him that the Complainant could not be found on the premises. Mr. W and Mr. McG carried out a further search and when the Complainant could not be found Mr. W saw Mr. McG leave. Mr. W became aware that the Complainant was located in a pub and assumed that he would come into work on the 25th May 2024 and have a conversation with Mr. W and Mr. McG. The following day Mr. W found the Complainant’s letter of resignation and personal items on his desk.

Cross-examination of Mr. W

Under cross-examination Mr. W stated that while he would have made every effort to get the Complainant home to his family he denied that he gave the Complainant permission to leave work early before he got into the crane.

The Respondent’s representative submitted that the focus of the Complainant’s complaint was on the events of the 23rd May 2024 and that on the Complainant’s own evidence he accepted that the events of the 23rd May 2024 had nothing to do with his age. While it was noted that the Complainant felt aggrieved and mistreated, which was denied, the Respondent submitted that any mis-treatment could not amount to a successful claim of discrimination because the Complainant accepted that the treatment he was subjected to had nothing to do with his age. The Respondent referred to the Labour Court decision in Arturs Valpeters v. Melbury Developments Ltd [2010] 21 E.L.R. 64 and submitted that the threshold had not been met even by the Complainant’s own admission. The Complainant’s complaint of discrimination, harassment and constructive discriminatory dismissal had to be linked to one of the nine grounds but given the Complainant accepted in evidence that the events of the 23rd May 2024 had no connection to age as a matter of law there was no basis upon which the complaint could succeed. In relation to the claim of victimisation there was no evidence of a protected act. It was further submitted that it is clear from the Complainant’s own account that he was familiar with the Respondent’s Employee Handbook and that he failed to invoke the Dignity at Work policy or the grievance procedure before he resigned.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

Discrimination for the purposes of this Act

Section 6 (1) of the Employment Equality Acts 1998 (as amended) (hereinafter referred to as “the 1998 Act”) states:

For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated.

Section 6 (2) provides that: as between any two persons, the discriminatory grounds are inter alia:

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

The Cognisable Period for the purposes of this Act

Section 77(5) of the 1998 Act states:

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

(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, 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 substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

 (c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

The Burden of Proof

Section 85A of the 1998 Act provides 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.”

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.

The WRC and the Labour Court’s approach to this issue and the test for applying section 85A of the 1998 Act is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v. Southern Health Board [2001] 12 E.L.R. 201 wherein the Labour Court stated:

“the claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only where these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

In Minaguchi v. Wineport Lakeshore Restaurant No. EDA034 “the primary facts” were defined as follows:

“It appears to me that the three key elements which need to be established by a claimant to show that a prima facie case exists are:

(i)                  that she/he is covered by the relevant discriminatory ground(s)

(ii)                that she/he has been subjected to specific treatment and

(iii)               that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.

The Labour Court, in its decision in Arturs Valpeters v. Melbury Developments Ltd [2010] 21 E.L.R. 64, addressed the onerous nature of the burden of proof:

“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.”

The Labour Court has also consistently stated that:

“The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of  discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts”: Kieran McCarthy v. Cork City Council EDA082

Once the prima facie case is established, the Respondent must rebut the prima facie case. This will require cogent evidence.

Discrimination on the age ground

In accordance with the Labour Court in the Valpeters decision, cited above, to succeed in a complaint of discrimination on age grounds, the Complainant must show that he was subjected to specific treatment that was less favourable than his colleagues because of his age. When questioned by the Adjudication Officer the Complainant stated that the within complaint was “not about” his age. As the Complainant has failed to produce any evidence of discrimination on the age ground during the cognisable period, namely in the six months prior to the referral of the complaint to the WRC to support this contention, I find that he has not established a prima facie case of discrimination in respect of this aspect of his complaint.

Harassment on the age ground

Section 14A of the Employment Equality Act states:

“(1) For the purposes of this Act, where —

(a) an employee (in this section referred to as ‘the victim’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘the workplace’) or otherwise in the course of his or her employment by a person who is —

(i) employed at that place or by the same employer, …

and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it

…

(b) without prejudice to the generality of paragraph (a) —

(i) such harassment has occurred, and

(ii) either —

(I) the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment, or

(II) it could reasonably be anticipated that he or she would be so treated,

the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable —

(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’ s employment and, if and so far as any such treatment has occurred, to reverse its effects.

(3) A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.

…

(7) (a) In this section —

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

(b) Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.”

In accordance with the Labour Court in the Valpeters decision, cited above, to succeed in a complaint of harassment on the age ground, the Complainant must show that he was subjected to unwanted conduct related to his age.

While there was a conflict in evidence between the Complainant and Mr. McG regarding the events of the 23rd May 2024, and in particular whether the Complainant had the Respondent’s permission to leave work early that day and whether he was followed to the public house and confronted by Mr. McG in a manner which left him shocked and embarrassed, it was accepted by the Complainant in evidence that the treatment he was subjected to on the 23rd May 2024, which was denied by the Respondent, was not related to his age.

Taking into consideration the evidence of and on behalf of the Complainant and the witnesses on behalf of the Respondent, and the documentation submitted by the parties I find that there was no evidence before me that the treatment the Complainant was subjected was on the basis of his age or that the treatment comes within the definition of harassment within the meaning of the 1998 Act. As the Complainant has failed to produce any evidence of harassment during the cognisable period, namely in the six months prior to the referral of the complaint to the WRC, I find that he has not established a prima facie case of discrimination in respect of this aspect of his complaint.

Victimisation

Section 74 (2) of the 1998 Act states:

“victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

The Labour Court in the case of Department of Defence v. Barrett EDA 1017 stated in relation to victimisation:

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”

That obligation is given effect in Irish law by section 74(2) of the 1998 Act. The definition of victimisation contained in that section contains essentially three ingredients. It requires that:

1. The Complainant had taken action of a type referred to at section 74(2) of the 1998 Act (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

It is apparent from the above that there must be a detrimental effect on the Complainant which is caused by him having undertaken a protected act of a type referred to above.

Section 85A of the 1998 Act refers to the burden of proof that rests upon a complainant. It is incumbent upon a complainant to establish facts from which discrimination, and in the instance case victimisation, may be inferred and only then does the burden shift to the respondent.

The burden of proof was considered in the case of A Female Employee v. A Candle Production Company DEC-E2006-035 wherein the Equality Officer stated that:

“The first issue for consideration… is whether the complainant in the present case has established a prima facia case of victimisation. I must therefore consider whether the complainant has adduced evidence to show that she was penalised and secondly, whether the evidence indicates that the pensalisation was solely or mainly occasioned by the complainant having in good faith opposed lawful means an act which is unlawful under the Employment Equality Act.”

In the instant case I must decide, in the first instance, whether or not the Complainant took an action that could be regarded as a “protected act” within the meaning of section 74(2) of the 1998 Act. The Respondent disputed the Complainant’s claim of victimisation and submitted that he did not undertake any of the “protected acts” within the meaning of section 74(2) of the 1998 Act.

It is clear from the wording of “victimisation” in the 1998 Act that a complaint for victimisation must relate to a complaint under the 1998 Act and not a general complaint of victimisation. Taking into consideration the evidence of the Complainant and the witnesses on behalf of the Respondent and the documentation submitted by the parties, while it is apparent that the Complainant believed that he was victimised on the 23rd May 2024 when he was allegedly followed and unfairly confronted in a public house by his manager Mr. McG, during what the Complainant described as his “free time”, all of which was denied by the Respondent, I find that the Complainant’s grievance was not a complaint of discrimination. As the Complainant in the instant case failed to present any evidence of a protected action he had taken, prior to the referral of the instant complaint, I find that he was not victimised pursuant to section 74(2) of the 1998 Act.

Constructive Discriminatory Dismissal

Section 2 of the 1998 Act “dismissal” 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;

The statutory definition of (constructive) dismissal provides for two tests, the contract test and the reasonableness test. The contract test is where the employee argues that he or she was “entitled” to terminate the contract because of the conduct of the employer which constitutes a fundamental breach of the employee’s contract of employment. The second test, which is the reasonableness test, has two elements. First, an employee may allege that while an employer may have acted within the terms laid down in the contract of employment its conduct may be none the less unreasonable. Second, the employee has to show that he or she acted reasonably in terminating the contract of employment in the circumstances. This latter element is a key factor as it requires the employee to have considered all other possibilities prior to taking the step of terminating his or her employment.

The contract test has been summarised in Western Excavating (ECC) Ltd. v. Sharp [1978] I.R.L.R. 27; [1978] QB 761 by Lord Denning MR as:

“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 as discharged from any further performance. The term imposes reciprocal duties on the employer and the employee.”

In the circumstances of this case, the Complainant has not identified any breach of his contract of employment on the part of the Respondent and certainly none which would amount to a significant breach going to the root of the contract of employment.

If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test. It is well established law that the burden of proof in a constructive dismissal case is on the employee and the burden is extremely high.

In Marcus Reid v. Oracle EMEA (UD1350/2014) the EAT stated that “[t]he burden of proof rests on the claimant to show that he had no choice but to leave his position with the respondent. He must show the Tribunal that his resignation was not voluntary and that the conduct of his employer was so unreasonable that he had no choice but to resign.”           

In Cedarglade Limited v. Tina Hliban (UDD1843/2018) the Labour Court noted that "the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify her terminating her employment" and held that the complainant failed to do so.

In Murphy v. CLI Insurance Services Limited (UD976/2014) the EAT noted that "in a constructive dismissal case the employee must show that because of the employer's conduct he was entitled to resign" and held that the complainant failed to do so.

Similarly, in Burns v. ACM Community Development Society Limited (UD2166/2011), the EAT held that the complainant fell "short of the high bar set to prove constructive dismissal".

The decision in Byrne v. Horwath Bastow Charleston Wealth Management Limited (UD67/2014) sets out the test for proving the very high threshold for constructive dismissal. In this case, the claimant argued her manager had engaged in bullying and harassing behaviour towards her and had raised her concerns with HR. Notwithstanding her discussions with HR, the respondent employer did not believe it was necessary to move the claimant to another reporting line. The claimant chose to resign instead of exhausting the company's bullying and grievance policies claiming that she "had lost confidence in utilising those procedures". The EAT rejected the claimant's case and set out the test for claimants to satisfy in a constructive dismissal case as follows:  "In constructive dismissal cases, the onus is placed on the Claimant to show that her conditions and treatment in the workplace by the Respondent were so intolerable and intractable that she had no other reasonable option but to involuntary resign”.

The burden of proof in a complaint such as this is an onerous one, in that the Complainant must prove not only that the Respondent's behaviour was unreasonable, but also that the Complainant response in resigning was reasonable.

The Respondent submitted that the Complainant must fully and properly utilise all grievance and other procedures before taking the unilateral decision to resign and subsequently claim a constructive discriminatory dismissal.

I agree with the Respondent - to succeed in a complaint of constructive dismissal, whether its discriminatory or otherwise, it is incumbent on a complainant to demonstrate their engagement with the respondent’s internal procedures.

The case law on this matter has been clear over many years. As far back as 1981, in the seminal case of Conway v. Ulster Bank Limited (UD474/1981), referring to Ms Conway’s actions before her resignation, the EAT found that,

“…the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

This is now the established benchmark for employees who claim that they have been constructively dismissed. The Respondent referred to the case of McCormack v. Dunnes Stores (UD1421/ 2008) wherein, in his consideration of the reasonableness of the employee’s decision to resign, the Chairman of the EAT stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his or her employers. The employee would need to demonstrate the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

In the case of Beatty v. Bayside Supermarkets (UD147/1987) the EAT held that:

“… it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v. Ulster Bank Limited UD474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of his not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

I have also considered Ranchin v. Allianz Worldwide Care S.A. (UDD1636) wherein the Labour Court held that:

“In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to involve 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. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v. Ulster Bank Limited UDA474/1981.”

It is for the Complainant to show on the facts of his case that he meets the high threshold as set out above and I am not satisfied that the Complainant has done so for the reasons set out hereunder.

Whilst the authorities referred to above relate to claims brought under the Unfair Dismissals Act 1977 as amended I accept the submission made on behalf of the Respondent that the same test must be satisfied in a constructive discriminatory dismissal.

The Complainant claimed that he was subjected to “gross bullying” on the 23rd May 2024 by his manager, Mr. McG, when, having been given permission to leave work early, he was followed by Mr. McG to a public house where he was confronted and left shocked and embarrassed. The Complainant stated that Mr. McG had no right to follow him and what he did and where he went in his free time was his own business. He stated that it was a surprising and embarrassing moment for him when Mr. McG approached him in the public house and he believed that he was treated very badly.  He accepted that the treatment had nothing to do with his age or any of the nine grounds set out in the 1998 Act. He made the decision to resign from his employment with the Respondent and did so by letter dated the 25th May 2024 which he left on Mr. W’s desk on the 24th May 2024. He was familiar with the Respondent’s Employee Handbook and accepted that he did not invoke either the grievance procedure or the Dignity at Work policy prior to resigning.

The Respondent disputed that the Complainant had permission to leave work early on the evening of the 23rd May 2024 or that the Complainant was followed or confronted in a loud or aggressive manner in a public space and submitted that there was no question that the Respondent’s actions were so unreasonable as to make the Complainant’s continuation of employment with the Respondent intolerable.

Mr. McG gave evidence that on the evening of the 23rd May 2024, while he was off duty, he was approached by Mr. W who informed him that the Complainant could not be found. Mr. McG stated that there was a history of the Complainant collapsing on the Respondent’s premises and having  to be taken to hospital by ambulance and that a missing person along a quay wall pier was concerning. Mr. McG was aware of the difficult time the Complainant’s partner was having following the death of her mother and that the Complainant was tired and worried about his partner. When Mr. McG and Mr. W could not locate the Complainant on the Respondent’s premises Mr. McG made his way on foot to the Plaintiff’s home stopping at a public house that he knew the Complainant frequented only to find the Complainant inside with a pint in front of him. Mr. McG disputed that he shouted at the Complainant stating that they were in close proximity to one another and the public house was not busy therefore there would not have been a need for raised voices.  

Mr. W gave evidence that whilst the Complainant had raised with him the possibility of going home early on the 23rd May 2024 he never gave the Complainant permission to leave work early and the conversation described by the Complainant never took place because the Complainant was working on the ground and Mr. W was up in a crane.

There was a conflict in the evidence as between the Complainant and the witnesses on behalf of the Respondent and on the balance of probabilities I resolve the conflict in evidence in favour of the Respondent. I found Mr. McG and Mr. W to credible witnesses who both expressed a genuine concern for the safety, health and welfare of the Complainant, not just as an employee of the Respondent but as a friend whom they had both known for over 30 years. I find that their response to the events of the 23rd May 2024 was entirely reasonable in all the circumstances and that at all material times they acted in a reasonable manner towards the Complainant.

The Complainant never initiated a grievance, whether in relation to the alleged discrimination, harassment and victimisation on the ground of age or at all. He never made a complaint, formally or informally, verbally or otherwise, suggesting that he was being treated in a less favourable manner because of his age. The fact that he did not do so leads me to doubt that he himself believed that discrimination had occurred.

In the particular circumstances of this complaint and upon consideration of all the relevant correspondence, documentation, oral evidence and submissions and the case law referred to above I find that the Complainant has not demonstrated that the Respondent breached his contract of employment or acted so unreasonably that he was justified in resigning and he has failed to establish that his response was reasonable in all the circumstances.

It is my view that the Complainant’s resignation on the 23rd May 2024 was not connected to his age and he has failed to discharge the burden of proof required to demonstrate that his resignation arose from his employer’s discrimination, harassment and/or victimisaiton on the age ground. I find his decision to resign was unreasonable and his complaint of constructive discriminatory dismissal fails.

As I have found that the Complainant has failed to discharge the burden of proof which requires him to establish the primary facts that can be relied upon to establish a complaint of discrimination, harassment, victimisation and/or constructive discriminatory dismissal I find that his complaint is not well founded.