Complainant

Respondent

Parties

Lorraine  Chu

Smorgs (ROI) Management Limited T/A Travelodge Ireland

Representatives

  Self-represented

Muireann McEnery, IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00055420-001

06/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00055420-002

WITHDRAWN

06/03/2023

The Complainant commenced her employment with the Respondent on 14 November 2005. Her employment terminated on 5 September 2022.

On 6 March 2023, the Complainant referred her complaint to the Director General of the WRC alleging that she was discriminated against on the grounds of age and family status in the context of promotion and training. She further alleged that she was harassed, sexually harassed, and victimised.

The Respondent rejects the claims.

The Complainant alleged that she was discriminated against by the Respondent on the grounds of age and family status. She alleged that she was harassed, sexually harassed and victimised. She alleged that the Respondent treated her unlawfully by discriminating against her in the context of promotion and training.

The Complainant submits that she started working for the Respondent on 14 November 2005. She became a supervisor on 25 February 2011.

The Complainant submits that a new manager started to work for the Respondent in 2014 and things became unbearable. The Complainant further submits that in 2019 International Protection Accommodation Services (‘IPAS) took over the hotel. She submits that her position became untenable as it was affecting her mental health. She was left with no option but to hand in her notice due to bullying and harassment, undermining her right to dignity at work, extreme social exclusion, verbal insults, jokes, being treated less favourably than other colleagues.

The Complainant submits that she was discriminated against because of her age. She received no new training which would help to further her career.

The Complainant gave six weeks’ notice and ceased her employment on 5 September 2022. The Complainant submits that she met with the Group HR Manager, Ms Brady on 23 August 2022 and highlighted a number of her concerns which were not investigated and brushed off. She was only thanked for her service.

The Complainant submits that on 4 November 2021 she informed her manager that she was unable to do accounts as she was not trained on the new system. She emailed the Head Office on 5 November 2021. She was then trained on the new system to carry out her duties.

The Complainant submits that her duties as a supervisor were banking, cash handling, safe checks, payroll, rotas, end of month accounts, and stock ordering. Payroll and end of month accounts were taken off her. The Complainant submits that she was also not trained or given access to a new online ordering system for one of the Respondent’s suppliers.

The Complainant submits that on 7 February 2022, while she was cleaning a perspex screen, a named security person said that she was “doing a lot of cleaning today, we will be able to see all your wrinkles now”.

The Complainant submits that younger staff members talked to her about “change of life”.  She further submits that some staff members called her “mop & bucket” and suggested that she represents the Respondent on a float in the Saint Patrick’s parade.

The Complainant submits that she was not informed by her manager when he was taking holidays even though other staff members knew the dates of his holidays.

The Complainant submits that she was isolated at work. She was harassed by the workers of the charitable organisation that dealt with the migrants for documentation that was not authorised by her but only by the management. The Complainant said that she would lose her job if she gave the documents out.

The Complainant submits that on 7 July 2022, a named security person was bringing up movies and songs from the 1950s asking the Complainant if she remembered these and smirking at another employee.

The Complainant submits that on 18 August 2022, an incident allegedly happened in the hotel that was investigated by Gardaí. She was not informed of the incident.

The Complainant submits that her manager would not engage with her, she felt isolated and became depressed. The Complainant submits that her GP recommended that she took some leave because of stress. The Complainant submits that she felt that this would not be a good step as the issues would not stop when/if she returned to work. She submits that she could not continue in her position. She said that she handed in her resignation and 5 September 2022 was her last day at work.

The Complainant submits that she spoke with her manager and discussed her resignation and told him that he was the instigator of all the above. The Complainant also spoke with the HR Manager and requested a copy of her file, which she received by post.

Summary of direct evidence of the Complainant

Regarding the preliminary matter of time limits, the Complainant said that she was not informed of anything that was happening in the hotel, she was not invited to meetings. She said that her last working day for the Respondent was the 5 September 2022, but she should have her two days off scheduled on the 6 September and the 7 September 2022.

She said that the most recent incident of discrimination was when she was not told about the alleged criminal incident in the hotel. She said that she was told by a housekeeper on 18 August 2022 that Gardaí have been called. There was no communication from the management.

The Complainant said that she met with HR on the 23 August 2022 and informed the HR Manager of her concerns. At that stage she had already resigned. She emailed HR on the 26 July 2022 stating that she had told her line manager that she was resigning, she gave six weeks’ notice.

The Complainant said that in July 2022, HR asked her to complete a course in leadership starting in September. An email confirming the course booked for the Complainant followed. On the same day, the Complainant’s manager asked her to sign a new contract with a pay increase and requesting her to wear a white shirt. The Complainant said that she was asked to be a manager.

The Complainant said that 5 September 2022 was her last day at work. On that day her manager told her he was saddened and surprised to see her leaving.

The Complainant outlined the incidents as described in her complaint form. She said that she was upset about the age-related comment. She further said that a cleaner calling her “mop & bucket” was a dignity at work issue.

The Complainant said that IPAS asking her for document she was not sure she could give to them was an attempt to undermine her.

The Complainant said that she is separated with three adult children.

She said that she was harassed because of her age, at the relevant time she was 59 years old. She said that maybe she was not wanted in the hotel, maybe “someone up the ladder”  did not want her.

The Complainant said that the fact that she was asked about residents’ smoke breaks was discriminatory.

Regarding the accounts training, the Complainant said that maybe the manager did not want her in the hotel because of her age or maybe she was vulnerable due to her family status.

The Complainant said that she was not provided with a training that would further her career. Regarding the leadership training the Complainant said that it would result in her having to sign an updated contract and becoming a manager.

The Complainant said that staff members were not told that she was leaving. She said that on her last day in employment she carried out her normal duties. She finished at 3pm. She said that her manager came to her and told her that he was surprised and saddened to see her leave. He said that he hoped they remain on good terms.

The Respondent decided not to cross-examine the Complainant’s evidence.

Background to the Complainant

The Complainant was initially employed as a Team Member in Travelodge Limerick on 14 November 2005 and was promoted to the role of a supervisor on 25 November 2011. The Complainant issued official notice of resignation on 25 August 2022 and her employment ceased on 5 September 2022.

Preliminary Argument - Time Limits

The Respondent submits that the Complainant is now outside of the statutory time limit to submit any further claim(s) with regard to the Employment Equality Acts. The Respondent relies on Section 77(5) of the Employment Equality Acts.

The Respondent submits that no reasonable cause for the time limit to be extended was provided by the Complainant. As per the Employment Equality Acts, the cognisable six-month period starts on the date of the alleged discrimination or the most recent incidence of alleged discrimination, as the case may be. The most recent incident of alleged discrimination according to the Complainant took place on 18 August 2022. As such, the Respondent submits that the WRC does not have jurisdiction to hear any claim under the Act which was made after 18 February 2023.

As outlined in Cementation Skanska v A Worker by the Labour Court, any extension requires the Complainant “to show that there are reasons which both explain the delay and afford an excuse for it… In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the complainant at the material time. The complainant’s failure to present his claim within the six- month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated his claim in time”.

Accordingly, the Respondent requests that the Adjudication Officer find that she does not have jurisdiction to hear the case.

Respondent’s Arguments

Without prejudice to the above, it is the well-established practice of the Workplace Relations Commission and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that they were treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.

In that regard, the Respondent relies on the Labour Court determination Southern Health Board v Teresa Mitchell, DEE011, [2001] ELR 201, Margetts v Graham Anthony & Company Limited, EDA038, Melbury Developments Limited v Arturs Valpeters (EDA0917).

The Respondent submits that the Complainant made a series of allegations of incidences of discrimination on the claim form. The Respondent submits that the majority of these allegations are unsubstantiated either by lack of reference to a specific date or a specific named individual.

The WRC Guide to “Procedures in the Investigation and Adjudication of Employment and Equality Complaints” states that:

“At the time of lodging the complaint form, the complainant must give as much detail as possible on the form itself. In employment equality cases the complainant must set out the facts, the link between the ground(s) cited and the alleged discrimination, any other relevant information and, where appropriate, any legal points the complainant may wish to make.”

The Respondent submits that the Complainant has not established a causal link between the alleged incidents as described on the claim and discrimination on the grounds of either age or family status.

The brief details provided by the Complainant regarding many of the alleged incidents places the Respondent in a detrimental position of not being in a position to adequately investigate or respond to the allegations being made. In Co Louth VEC v The Equality Tribunal and Pearse Brannigan it was noted that

“Of course, it is necessary that insofar as the nature of the claim is expanded, the company in the claim must be given a reasonable opportunity to deal with these complaints, and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.”

Where the Complainant has provided details regarding the alleged incidences, the Respondent would dispute some of the facts put forward by the Complainant. For example:

·       The Complainant alleges that her position became “untenable” when “IPAS took over the hotel for the immigrants”. The Respondent submits that it did not enter into contract with IPAS until December 2021.

·       The Complaint alleges that she was “receiving no new training to help further [her] career”. The Respondent believes this to be false as the Group Human Resources Manager had specifically met with the Complainant in July 2022 regarding her potential participation in an IHF Leadership and Development course.

The Respondent also submits that it was not made aware by the Complainant of any of the alleged incidents outlined in the claim form prior to her resignation on 23 August 2022. The Complainant’s concerns were highlighted for the first time to the Group Human Resources Manager in a meeting on 23 August 2023 regarding her decision to resign. Prior to this meeting, the Complainant confirmed that she had had the opportunity to review the Respondent’s procedures for dealing with grievances and bullying & harassment. The Respondent highly regrets the Complainant’s decision not to utilise these procedures regarding any of the alleged incidents as it would have been eager to investigate and resolve any concerns had they been brought to its attention.

Conclusion

The Respondent’s position is that the claim at hand is outside the statutory time limits. It is the Respondent’s view that no reasonable cause has been put forward by the Complainant as to why the claim should be subject to an extension for the reasons outlined. As such, the Respondent requests that this claim be dismissed in its entirety.

Without prejudice to the above, the Respondent submits that Complainant has not provided facts from which a prima facie case of discrimination can be established.

Summary of direct evidence and cross-examination of Ms Brady, the HR Manager

Ms Brady said that she had met the Complainant probably on three occasions (April, July and August 2022). She spoke with the Complainant in April 2022 at a gala dinner when they discussed the Complainant’s training opportunities. She then spoke with her in July 2022 about a leadership and development training. Ms Brady said that training was available to all staff, except during Covid-19 pandemic.  Ms Brady also spoke with the Complainant in August 2022.

Ms Brady said that she had sent two or three emails to the Complainant before the Complainant agreed to meet. The Complainant requested to meet outside the hotel, which was accommodated.

Ms Brady said that emails show that effort was made to meet with the Complainant to acknowledge her service. It was noted that her resignation came after so many years of service.

Ms Brady said that the Complainant vaguely referred to security and issue of rest breaks. Ms Brady asked the Complainant to come back to her if she had any grievances. She said that the Complainant was very vague and hard to follow. The Complainant never brought any issues to the manager’s attention.

The Complainant availed of the opportunity to cross-examine the witness. She put to Ms Brady that her training on the new system was over the phone after the system was live. Ms Brady clarified  that everyone was trained on the phone.

The Complainant put it to the witness that payroll duties were taken off her in 2014/2015 when a new manager joined. She also referred to a new system that was introduced for one of the suppliers. 

Summary of direct evidence and cross-examination of Mr Hennessy, Group General Manager

Mr Hennessy said that he was keen on HR meeting with the Complainant. She was a long serving employee. He clarified that all staff who were trained on the new system were trained over a period on the phone.

The Complainant referred her claims to the Director General of the WRC on 6 March 2023 alleging that she was discriminated against on the grounds of age and family status in the context of promotion and training. She further alleged that she was harassed, sexually harassed and victimised.

Discrimination

Section 6(1) of the Act provides that discrimination shall be taken to occur where

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

… (c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

…

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

Section 2 of the Acts clarifies that;-

“family status” means responsibility—

(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;

8. Discrimination by employers etc.

(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.’

Harassment and Sexual Harassment

Section 14A provides that;-

(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,

(ii) the victim's employer, or

(iii) a client, customer or other business contact of the victim's employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or

(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,

(b) 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.

(c) 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.]

Victimisation

Section 74(2) provides:

“(2) For the purposes of this Part 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 or 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.

Comparator

The Complainant failed to identify a comparator or raise any submission on a hypothetical comparator that she was allegedly treated less favourably than. This a key requirement of the burden of proof which she has failed to discharge.

Burden of proof

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. 

The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v Valpeters EDA0917 where it held that Section 85A: 

"…. provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation 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 establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In Hallinan v Moy Valley Resources DEC-S2008-25, a complaint taken under the Equal Status Act, 2000, the Equality Officer held that, in order to establish a prima facie case of discrimination, the following must be established:

1.          The complainant must establish that he or she is covered by the protected ground;

2.          Establish that the incident complained of has allegedly taken place;

3.          The treatment was less favourable than was or would be afforded to a person not covered by the relevant ground (a comparator) in similar circumstances.

There must be fact of “sufficient significance” to raise a presumption of discrimination. It is not sufficient to simply be a member of a protected group to render acts discriminatory, if for example no comparator exists or can be inferred, or the acts are transparently attributable to a non-discriminatory cause.

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

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

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. 

Time limit

Section 77 provides as follows:

‘(5)

(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 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.

(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant's notice.

(6A) For the purposes of this section—

(a) discrimination or victimisation occurs—

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

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operated over a period, throughout the period,

(b) a deliberate omission by a person to do something occurs when a person decides not to do it, and

(c) a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either—

(i) does an act inconsistent with doing it, or

(ii) the period expires during which the respondent might reasonably have been expected to do it.’

The time limits which govern the referral of complaints under the legislation are provided for in Section 77(5) of the Acts (as set out above). 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 WRC unless the discrimination in issue is part of a continuum of events.

In considering this matter, I have taken note of the case of Ann Hurley v County Cork VEC EDA1124 where the Labour Court considered the issue as to whether events which occurred outside the cognisable period for the complaint made could be considered as part of a regime or continuum and thus within the jurisdiction of the Court. It was held by the Labour Court that: 

‘Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur[1989] ILRM 387). This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an employer pursues a policy or practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the policy or practice is discontinued. Hence an aggrieved party could maintain a claim in respect of acts or omissions which occurred in pursuance of the policy or practice regardless of when the act or omission occurred. There is, however, authority for the proposition that an act occurring after the presentation of the Complainant’s complaint may not be taken into account when determining whether there was a continuing act (see the decision of the Court of Appeal for England and Wales in Robertson v Bexley Community Centre [2003] IRLR 434, at para 21).’  

The Labour Court also held in this decision that: ‘Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum …… in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit…… their admissibility is dependent upon some link being established between the occurrences outside of the time limit, and those inside the limitation period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely.’

The approach of the Labour Court as outlined above was approved by McKechnie J in the Supreme Court case of County Louth VEC v Equality Tribunal [2016] IESC 40. Here the Judge stated, at par 23-25 of the Judgment: -

‘23. At the outset it is important to understand that both ss. 77(5)(a) and (6A) are intended to capture quite different circumstances (County Cork VEC v Hurley EDA1124 (Labour Court, 26th July, 2011)). Subsection (6A) deals with situations where a single act occurs and where it continues to occur over a lengthy period, such as discrimination based on a regime, rule, practice or principle of an ongoing nature. A term in a contract is a good specific example of the provision’s more general meaning. In such a case the six month period initiating the process will only start to run when the offending regime or practice ceases; or, put another way, the discriminatory act will be regarded for limitation purposes as having occurred only when such basis has ceased to exist.

24. On the other hand, s. 77(5)(a) of the 1998 Act deals with a situation in which there are a series of separate acts or omissions on the part of, say, an employer, which, whilst not forming part of a regime, rule, practice or principle (“regime or practice”), are sufficiently connected so as to constitute a continuum of discrimination. In effect, this deals with a situation whereby there are separate manifestations of the same disposition to discriminate (Bolger, Bruton and Kimber, Employment Equality Law (Dublin, 2012) at para. 16–47). In such a case, once a complaint is made within six months from the date of the last act or omission, all conduct found to form part of the continuum will be regarded as having occurred within time.

25. At the level of principle, therefore, where such a regime or practice exists or where a sufficient linkage can be established between separate acts, it is possible to plead matters which have occurred on a date or dates far beyond the six month period. In theory, such could extend for several years prior to the date of complaint. Even if that should occur, however, provided that the circumstances intended to be covered by the subsections are established, all such incidents will be regarded as being within time and thus will be within the competence of the Equality Tribunal to investigate for redress purposes.’

It is clear from the foregoing that the Acts allow for circumstances in which acts of discrimination that occurred outside the normal time limit can nonetheless be relied upon provided the claim is submitted within the six months of the point in which the discrimination ended. In the circumstances, it is necessary for me consider if the incidents of alleged discrimination relied upon by the Complainant can be regarded as part of a continuing act of discrimination for the purpose of Section 77(5) or Section 77(6A) of the Acts.

Admissibility is also dependent upon some link being established between the occurrences outside the time limit, and those inside the cognisable period, which makes it just and reasonable for them to be treated as part of a continuing act upon which the Complainant can rely.

Therefore, in accordance with the consistent approach applied by the Labour Court in circumstances such as those that prevail in the within case, I must first consider whether an act or acts of discrimination occurred within the cognisable period for the within complaint before I can consider whether events outside of that period can be considered to be part of a continuum or regime of discrimination and within my jurisdiction.

The Complainant referred the within complaint to the Director General of the WRC on 6 March 2023. Therefore, the cognisable period  for the purpose of the complaint in accordance with the time limits provided for in Section 77 of the Acts is the six-month period prior to the referral of the complaint, namely from 7 September 2022.

The matter of time limits was explained to the Complainant in the WRC correspondence of 14 March 2023. The Complainant replied that her last working day was 5 September 2022. However, she had her two scheduled days off that week on the 6 and the 7 September 2022. Therefore, she argued that her employment should have terminated on 7 September 2022. I note that in the WRC complaint form under the heading ‘Date Employment ended’,  the Complainant inserted 5 September 2022. The Complainant’s letter of resignation addressed to HR and dated 25 August 2022 states without any unambiguity that “My last day of employment will be the 5th of September 2022”.

The matter of time limits was explained to the Complainant at the adjudication hearing. Even if it was accepted that the Complainant’s last day of employment was 7 September 2022, the Complainant did not put forward any evidence that would show that any incident of alleged discrimination or harassment occurred on 7 September 2022. The Complainant was prompted by the Adjudication Officer to recall her last days in employment and point to anything she believed constituted discrimination or harassment. She was unable to do so.

Mere assertions and conjecture fall far short of the requirement on a complainant under the Acts to establish facts from which an inference of discrimination could be made, necessary to shift the burden of proof to the Respondent. For this reason, I find this aspect of the claim before me not to be well founded. 

I find that the Complainant has failed to adduce any compelling evidence from which it could be reasonably concluded that, on the balance of probabilities, the Complainant was discriminated on the ground of age, family status and/ or was harassed, and/or was sexually harassed but rather has essentially relied upon supposition and assertion, unsupported by evidence, in support of her claim in this regard.

Finally, the Complainant alleged that she was victimised.

In the case of Tom Barrett -v- Department of Defence EDA1017the Labour Court set out the three components which must be present for a claim of victimisation under Section 74(2) of the Acts to be made out.  It stated that (i) the Complainant must have taken action of a type referred to at paragraphs (a)-(g) of Section 74(2) – what it terms a “protected act”, (ii) the Complainant must be subjected to adverse treatment by his/her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the Complainant.

There was no evidence proffered to suggest that the Complainant made a protected act within the meaning of section 74(2). There was also no evidence offered as to the adverse treatment allegedly suffered by the Complainant.  In the circumstances, I am not satisfied that the Complainant has adduced any evidence from which it could be reasonably concluded that she has been subjected to victimisation within the meaning of the Acts. 

Accordingly, I find that the Complainant has failed to establish facts from which it could be inferred that she was subjected to victimisation within the meaning of Section 74(2) of the Acts in the within case.  

I declare this complaint to be not well founded.

Discrimination – age – family status – harassment – sexual harassment - victimisation