Complainant

Respondent

Parties

Aoife Cooney

Focus Ireland

Representatives

Robert Jacob, Jacob and Twomey Solicitors

Des Ryan BL

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-00052453-001

29/08/2022

On behalf of the respondent, Mr Ryan raised a preliminary issue concerning the requirement at s.53(1) of the Charities Act 1961:

Before any legal proceedings (except legal proceedings instituted with the authority of or by the direction of the [Charities Regulatory Authority] under section 25 in relation to any charity are commenced by any person, that person shall transmit to the [Authority] notice in writing of the proposed legal proceedings and such information as may be requisite or proper or may be required from time to time by the [Authority], for explaining the nature and objects thereof.

In the text of the Act, there is a closed brackets symbol “)” missing from this clause.  However, this doesn’t appear to cause any confusion as to the meaning of the provision.

Mr Ryan submitted that the decision of the Supreme Court in Zalewski v an Adjudication Officer[1] means that, at a hearing at the WRC, an adjudication officer is engaged in the administration of justice and in making binding decisions on legal disputes, a process which was considered “indistinguishable from the determination of a legal dispute before a court.” (Paragraph 99).  Mr Ryan argued that the word, “shall” in s.53(1) above means that, prior to commencing legal proceedings, the requirement to notify the Charities Regulator is a mandatory condition.  In support of this position, Mr Ryan referred to the decision of the Labour Court in The Public Appointments Service v Roddy[2].  The Court held that s.77(7) of the Employment Equality Act which provides that a complainant “shall, in the first instance refer the claim for redress to the holder of the recruitment license concerned” means that a claim involving discrimination must be referred to the Public Appointments Service itself.

Findings on the Preliminary Issue

The Charities Act 1961 was enacted many years before practically all the employment legislation that now governs the relationship between employers and employees in Ireland.  In 1961, the government had not contemplated the Employment Equality Act 1998 and it is my view that the provision of s.53(1) of the Charities Act is intended to refer to legal proceedings taken by “a person” against a registered charity and not by an employee against their employer.  Since the decision of the Supreme Court in Zalewski, many complaints have been heard at the WRC where employees of registered charities have brought complaints to the WRC and I can find no precedent that shows that an employee has not had their complaint heard because of their failure to inform the Charities Regulatory Authority in advance of their intention to submit a complaint.

That said, the provision remains on the Statute Book and has not been repealed.  To overcome the respondent’s concern, on the day of the hearing, I wrote to the complainant’s solicitor, Mr Jacob, to ask him, in advance of a Decision on this matter being issued, to inform the Charities Regulator that Ms Cooney has submitted a complaint to the WRC under the Employment Equality Act 1998.  On May 12th 2024, Mr Jacob sent the WRC a copy of his letter to the Charities Regulator, dated May 10th 2024, to the effect that his client submitted a complaint to the WRC on August 29th 2022.  Having received this confirmation, I intend to proceed with my consideration of the complainant’s case.

The complainant is a marketing professional and she joined Focus Ireland in April 2015 as campaigns manager.  In May 2018, she was promoted to the role of digital media and marketing manager, a position she held until she resigned on March 14th 2022.  She left her job on April 30th 2022.

In a submission to the WRC on August 29th 2022, the complainant alleges that she was discriminated against on the ground of gender and family status.  When she was an employee of the respondent, she decided to become a single mother and she had two children, born in October 2019 and April 2021.  She claims that, from the time she returned from her first maternity leave in July 2020, until she resigned in March 2022, because of her status as a single mother, she was subjected to bullying by the CEO, Mr Dennigan and the director of advocacy, Mr Allen.  She claims that her resignation was a constructive dismissal.  On behalf of the respondent, Mr Ryan submitted that the complainant has not made out a prima facie case of discrimination and that she resigned voluntarily to move to a new role in another organisation.  He said that the complainant failed to use the respondent’s grievance procedure to deal with her concerns about her relationships at work.

The complainant submits that there was a notable change in the behaviour of Mr Allen and Mr Dennigan towards her when she first announced that she was pregnant with her first child in the middle of 2019.  It is necessary for me to note at this point that this complaint was submitted to the WRC on August 29th 2022.  Incidents that may have occurred three years previously are outside the statutory six-month and the extended 12-month time limit for investigation prescribed at s.77(5) of the Employment Equality Act 1998 (“the EE Act”). 

When the complainant returned from maternity leave around July 2020, like many office-based employees, she worked from home due to Covid-19.  In his submission on her behalf, Mr Jacob said that the complainant experienced difficulties during online meetings with Mr Dennigan and Mr Allen.  She claims that she was repeatedly interrupted and subjected to inappropriate interrogations during the meetings. 

In September 2020, the complainant informed her manager that she was pregnant with her second child.  Mr Jacob said that the inappropriate behaviour continued.

On February 1st 2021, when she was eight months’ pregnant, the complainant fell down the stairs in her house.  She ended up being badly bruised, in pain and very concerned about her unborn baby.  This accident occurred after an executive team meeting that she attended online, during which she claims that she was bullied by Mr Dennigan and Mr Allen.  Despite this accident, the next day, the complainant attended a meeting with her line manager, Ms Carr.  Two days later, she was required to attend four hours of interviews.  Mr Jacob said that this was an incredibly difficult undertaking when the complainant was eight months’ pregnant and in considerable pain from her fall.  This event is also outside the statutory time limit for submitting a complaint.

When the complainant was absent during her second maternity leave, between March and November 2021, a colleague acted up in her role of head of digital and marketing.  Mr Jacob said that when this colleague made a presentation to the executive management team, he wasn’t interrogated in the same way that the complainant had been, but he was commended for his presentation without being asked any questions.

On March 14th 2022, the complainant had what she described as a “private meeting” with Ms Carr, Mr Dennigan and Mr Allen. The meeting was held remotely.  In her evidence, the complainant said that the purpose of this meeting was to discuss her concerns that she wasn’t being listened to at executive team meetings, but that she was interrupted and talked over.  The complainant claims that, at this meeting, she was humiliated and ridiculed by Mr Dennigan and Mr Allen, who made no effort to listen to her concerns.  She claims that Mr Allen left the meeting abruptly.  On the same day, due to what she described as “the intolerable behaviour” of Mr Dennigan and Mr Allen, the complainant resigned.  She left her job at the end of April.

On April 12th 2022, the complainant submitted a formal grievance to her employer regarding her concerns about how she was treated at five executive team meetings held remotely over Microsoft Teams.  In this letter, she said that, due to the stress she was experiencing at work, in December 2021, she was prescribed situational anxiety medication by her GP to help her to face the meetings with the executive team.

An independent consultant, Ms Siobhán Woods, was appointed to investigate her complaints.  Although there is a provision in the terms of reference for Ms Woods to review recordings of executive team meetings, she informed the complainant that the recordings were missing.  It is the complainant’s position that it was not possible for Ms Woods to carry out an investigation in the absence of these recordings.

Although she submitted a data access request, the complainant has not been provided with records of the meetings Ms Woods had with the people she interviewed as part of her investigation.

Legal Precedents Concerning the Burden of Proof

Asserting that the complainant has met the burden of proof that shows that, on the basic facts, she was discriminated against by the behaviour of Mr Dennigan and Mr Allen, Mr Jacob referred to the following legal precedents:

Southern Health Board v Teresa Mitchell[3]

Considering the onus of proof that rests with the complainant, the Labour Court held that,

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  This indicates that a 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 if those 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.”

Melbury Developments Limited v Arturs Valpeters[4]

Addressing the nature of the burden of proof, the Labour Court stated that,

“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.”

Coughlan v Cumann Luthcleas Gael Chorcaí[5]

In this decision of the Equality Tribunal in 2013, it was held that,

“Where a prima facie case of discrimination 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 gender of the Complainant and the impugned act or omission alleged to constitute discrimination.  Thus, in Wong v Igen Ltd and others (a decision of the Court of Appeal for England and Wales), Peter Gibson LJ, 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.”

Mr Jacob asked me to consider the decision of the Equality Officer in A Worker v An Insurance Company[6].  In this case, the complainant raised concerns with the CEO and found his responses intimidatory.  The Equality Officer found that in circumstances in which the complainant’s performance rating was reduced and that a colleague had been appointed to a relevant role, that this was sufficient to establish that, on the primary facts, she had been discriminated against.

Mr Jacob also asked me to refer to the decision of the Equality Officer in Batt v Palmece Limited trading as The Comfort Inn[7].  The complainant in this case was awarded €100,000 folloing a finding that she was discriminated against on the grounds of her gender and family status.  The Equality Officer noted that the discrimination “persisted through two pregnancies and lasted for nearly a year and eight months…”

The Contract Test and the Reasonableness Test

Under this heading, Mr Jacob referred to the decision of my colleague adjudicator, Ms Niamh O’Carroll in A Cleaner v A Cleaning Company[8] and Ms O’Carroll’s clear disposition regarding the two tests that govern a claim of constructive dismissal. 

Also under this heading, Mr Jacob referred to the following precedents: 

Berber v Dunnes Stores, [2009] IESC 10

Lewis v Motorworld Garages Limited, [1986] ICR 157

Omilaju v Waltham Forest London Borough Council, [2005] 1 AII ER 75

Brown v Merchant Ferries Limited [1998] IRLR 682

It is the complainant’s case that she was discriminated against by the respondent on the grounds of her gender and her family status as a single mother.  She claims that, when she returned from her first maternity leave in September 2020, she was the subject of inappropriate behaviour by her managers.  Her various attempts to have her grievances address were unsuccessful.  Because of how she was treated, she was prescribed medication for anxiety. 

Asking me to find in favour of the complainant, Mr Jacob referred to the decision of the Court of Justice of the European Union in Von Colson and Kamann v Land Nordrhein-Westfalen[9] to the effect that, where rights under EU law are infringed, redress should not only compensate for economic loss, but should be effective, proportionate and dissuasive. 

The respondent is a registered charity providing homeless services and is a company limited by guarantee.  It is managed by a voluntary board of directors and run by an executive team.  The executive team is comprised of the CEO and six directors:  HR, finance, property, advocacy, fundraising and services.

The CEO, Mr Pat Dennigan is responsible to the board of directors for the implementation of the organisation’s strategic plan and for the overall operations of Focus Ireland and Focus Housing Association.  He is also responsible for day-to-day operations.

Mr Mike Allen is the director of advocacy and he manages a team of approximately 10 staff.

The complainant reported to the director of fundraising, Ms Amy Carr.

In his submission on behalf of the respondent, Mr Ryan set out the background to the complainant’s decision to resign.  Having been recruited in March 2015 as a corporate campaigns officer, in May 2018, she was promoted to the role of strategic digital and marketing manager.  She reported to the director of fundraising and marketing, Ms Amy Carr.  The complainant was to “play a crucial role in ongoing digital transformation across the organisation, advising on cross-functional teams and committees, contributing expertise in digital platforms and resources and working with and managing third party suppliers to deliver the strategy.”  Her main responsibilities were,

§  To develop and drive the organisation’s digital strategy;

§  Creative development and content delivery to support the organisation’s core messaging and strategy;

§  Management of and reporting on the organisation’s website, digital, social media and internal communication channels;

§  The development of specific integrated marketing campaigns to key targets and online audiences;

§  The guidance of teams across the organisation on creative development for marketing campaigns.

The practice in the organisation was to have two weekly executive team meetings; one on Monday mornings to focus on operations and a second meeting on Wednesday mornings to monitor the implementation of strategy.  Agendas were circulated for both meetings in advance and minutes were taken.

In relation to the Monday operational meetings, if a member of the executive team was unable to attend, a member of their team attended in their place.  The complainant attended a number of Monday morning meetings as a delegate of the director of fundraising.

Where staff are responsible for cross-functional projects, they are required to attend Monday operations meetings for a portion of the meeting, to report on progress, to seek support and to update the members of the executive team in relation to their responsibilities.  Mr Ryan said that participants at these meetings are expected to be prepared and to understand “the need for professional challenge and performance management in governance structures."  The complainant attended several of the Monday operations meetings specifically to present on progress on the website project.  She didn’t attend the strategy meetings which were held on Wednesdays.  Due to the restrictions that followed the onset of the Covid-19 pandemic, from March 2020, executive meetings were held online over MS Teams.

Response to the Complainant’s Allegations of Discrimination

The respondent denies that the complainant was subjected to any inappropriate, degrading or humiliating treatment as she has alleged.  The claims made in her submission, regarding the announcement of her pregnancy, which are outlined in the previous section, are not accepted by the respondent. Mr Ryan submitted that it was open to the complainant to raise any alleged concern that she may have had, but she did not do so.

The respondent does not accept the complainant’s description of what occurred at executive meetings when she returned from maternity leave following her first pregnancy, or the events related to her second pregnancy and her return to work in November 2021.  In his submission, Mr Ryan stated that the complainant’s two requests to attend hospital appointments were accommodated and her request to spread out interviews so that she wouldn’t be sitting for long periods was also facilitated.

Mr Ryan submitted that Mr Jacob’s assertion that the complainant’s colleague “was not interrogated in the way the complainant had been” is wholly irrelevant and is not an appropriate attempt to invoke a comparator.

The respondent does not accept the complainant’s account of how she attempted to resolve issues.

The Website Project

In January 2021, the respondent commenced a project to upgrade the organisation’s website.  The CEO, Mr Dennigan was the project sponsor and the complainant was the project leader for this project.  In this capacity, she attended several executive team meetings to give updates on progress.  In his submission, Mr Ryan described the website as “a critical asset to communicate with donors, supporters and the public.”  The website is a vehicle for information about recruitment and fundraising.     

The original deadline for completion of this project was the first week of May 2021.  However, for a variety of reasons, the project was completed by the director of fundraising, Ms Carr, towards the end of September that year.  Mr Ryan listed the problems with the project as,

§  Issues with scheduling and the project plan;

§  Resource allocation and estimation of work;

§  Failure to include other departments in the planning;

§  Issues with communication of these problems and escalation to the executive team;

§  The complainant’s commitments concerning meetings and delivery which were not met;

§  Denial that such commitments had ever been made;

§  New, unrealistic commitments being made.

The five-month delay in the delivery of the new website impacted on five months of fundraising and severely impacted the organisation’s most significant fundraiser, the Shine a Light Night, in October 2021.  The target revenue for this one-night event is €1.5m.  Some of the components of the website were not completed when it was launched in September 2021, including content for all departments in the organisation.  When she returned from maternity leave in November, the complainant was responsible for completing the project, with all the elements that were paused or not completed in September.

It is the respondent’s position that the issues that the complainant refers to as bullying were in fact reasonable, appropriate and legitimate questions, comments, responses and reactions in relation to the website project.  Mr Dennigan and Mr Allen were of the view that the complainant was not effectively addressing the challenges presented by the project.  It is their position that their interaction with the complainant were appropriate and expected in the workplace and were relevant to her role as strategic digital and marketing manager and as the lead person on such a significant project.

Mr Ryan said that Mr Dennigan was concerned with the success of the project and the impact of the delays on the organisation, particularly regarding fundraising.  His approach was to challenge the project and not the project leader.  He was concerned that, at the executive meetings, he wasn’t getting enough information about how the project was progressing, why the schedule was constantly slipping and the difficulties being encountered.  Mr Dennigan did not get answers to these issues from the complainant.  He also felt that the complainant was not seeking the support that she needed to progress the project.

As head of advocacy, a number of functions within Mr Allen’s area of responsibility depend to a significant extent on the effectiveness of the organisation’s website.  The failure to complete the project was having an effect on his team.  Fundraising targets were not met and his team were unable to progress their work.

One of the respondent’s strategic goals is to make the organisation the leading resource for reliable research and information about homelessness.  The outcome of the organisation’s research is published on its website.  One of the main audiences for this research are policy-makers, students and academics who access information through the Google Scholar search engine.  This requires a specialised code to be inserted on the website to ensure that the reports are indexed on Google Scholar.  When this was first inserted in 2019, the number of readers of the organisation’s reports increased considerably.  Mr Ryan said that the code was not inserted in the first phase of the website project and repeated requests for it to be included were not responded to effectively.

Mr Ryan said that Ms Carr found that the complainant frequently disregarded the concerns of the executive team regarding the implementation of the new website.  Ms Carr spoke to the complainant after meetings and repeatedly provided feedback to help her to prepare more thoroughly for the next meeting.  Ms Carr will say that the complainant often dismissed this feedback and requests to prepare for meetings.  This affected Ms Carr’s ability to support the complainant.  The complainant felt that it was unreasonable for the executive team to expect the project to be completed within the timeframe specified by the company selected during the tender process, and it was her view that quality was more important than meeting this deadline.  Also, the complainant gave instructions not to capture lessons learned after the website went live, which contradicted Ms Carr’s direction to the colleague of the complainant who covered for her when she was on maternity leave.

When the project was completed, Mr Dennigan initiated a “lessons learnt” exercise to ensure that the organisation learned from the experience.  The complainant was one of the internal stakeholders in this exercise and a report was finalised and presented to the executive team at a meeting in January 2022.  The report highlighted the deficiencies in the project and identified steps to avoid these happening in future, including ongoing investment and a commitment to a project management methodology which is now standard in the organisation.  The presentation of these outcomes was included in the respondent’s book of documents for this hearing.

At the last executive team meeting that she attended on February 14th 2022, the complainant made a detailed presentation on the learnings from the project.  In her presentation, she minimised the extent of the delays and the impact on other departments in the organisation.  Mr Allen will give evidence that one of the lessons of the review was that the targets were unrealistic.

On March 14th 2022, the complainant attended a meeting with Ms Carr, Mr Dennigan and Mr Allen to discuss the vision for the website.  The complainant had requested this meeting after the executive team meeting of February 14th which I have referred to above.  In her email to Ms Carr requesting the meeting she said,

“I think it would be really helpful for you and I to meet Pat and Mike to discuss their vision for the website and how we can realise that shared vision.  Would you mind requesting this meeting please?”

On the morning of the meeting, the complainant handed in her notice.  Before the meeting took place, in an email to Ms Carr, she raised her concerns about Mr Allen and Mr Dennigan for the first time:

“This meeting was called to address the fact that Pat and Mike are unwilling to listen to me when I present on the website and react in a contentious manner, so I’m wondering how we address that issue?”

Mr Allen will give evidence that the complainant continued to make assertions that everything was progressing well and that the project was nearly completed.  He will say that, when he raised a specific issue that had not been addressed, he found that the complainant replied in a dismissed and exasperated manner as if she had never heard of the issue before.  Mr Allen was upset at this and left the meeting.

Having resigned on March 14th 2022, the complainant worked out her notice and finished working for the respondent on April 30th.  On April 5th, Mr Allen wrote to the complainant to address her lack of understanding about the range of issues raised by his team and the impact on them caused by the lack of progress with the website project.  Mr Allen noted that,

“On hearing that one of the stakeholders has important issues which you are not aware of, a constructive approach would have been to start a process to document those issues and see how they can be addressed.  Instead, you still insist that the website is nearly perfect and only needs a few tweaks.”

Mr Allen concluded his email by saying that he hoped that this gave an indication of the causes of his frustrations and the wide range of important issues which they needed a plan to address.  The complainant did not acknowledge or reply to this email.

The Complainant’s Grievance

The first complaint made to the respondent about alleged bullying was by way of a letter from the complainant dated April 12th 2022, one month after she resigned.  Prior to this, no issues about bullying were raised with the CEO, or with Mr Allen or the complainant’s line manager, Ms Carr.

In accordance with the respondent’s Dignity at Work Policy, the director of HR wrote to the complainant on May 12th 2022, to let her know that she had been nominated to address the complaint.  The complainant declined the offer of mediation and the HR director decided to proceed with the Secondary Informal process, as set out in the WRC / Health and Safety Authority’s Code of Practice on the Prevention and Resolution of Bullying at Work.  On June 2nd 2022, the director of HR informed the complainant that Ms Siobhán Woods had been selected to conduct the Secondary Informal Process.  In accordance with the terms of reference for the process, Ms Woods was required to,

1.       Establish facts and the context relating to the allegations made in the complaint;

2.       Explore the possibility of an agreed resolution;

3.       Make any recommendations that she considered appropriate.

During July and August 2022, Ms Woods had three meetings each with the complainant and Mr Dennigan and two meetings with Mr Allen.  She also met Ms Carr and she reviewed the recording of the executive team meeting of February 1st 2022, at which the complainant made a presentation.  Ms Woods produced a document on August 19th 2022 in which she made a number of recommendations:

1.       Acknowledging that the respondent organised a project management course for employees after the “lessons learnt” initiative of January 2022, Ms Woods recommended that this training is available for all new employees on a continuous basis and for employees who move internally into project management roles.

2.       She recommended that the respondent develop a template presentation slide for employees who are required to present to the executive team on projects. Timelines, milestones reached, resource requirements and potential pitfalls are to be identified on this template.  Ms Woods recommended that a “traffic light” system was included in the presentation template so that participants at meetings will be aware at first glance if a project is on schedule.

3.       To facilitate more direct communication, Ms Woods recommended that executive meetings take place in-person and not remotely.  She also recommended that the organisation provide training in online communications.

4.       As Ms Carr was relatively new to the organisation when the complainant raised her concerns, Ms Woods recommended that managers receive coaching and have a mentor.

A copy of Ms Woods’ report was included in the respondent’s book of documents for the hearing.  On August 29th 2022, this complaint was submitted to the WRC.

On September 15th 2022, the HR director sent the complainant a copy of Ms Woods’ report.  She was informed that, if she did not accept the outcome of the report, she could proceed to request a formal investigation.  The complainant did not appeal against Ms Woods’ findings. 

The Burden of Proof

Mr Ryan submitted that the complainant has not established a prima facie case of discrimination in accordance with s.85A of the Employment Equality Act.  In accordance with this provision, she is required to establish that she has been treated less favourably than another person in comparable circumstances on one or more of the discriminatory grounds.  Mr Ryan argued that the complainant has failed to establish “the requisite legal nexus between the alleged less favourable treatment (which is denied) and her gender or family status.”  He submitted that the complainant was not treated less favourably on these grounds and her claim is therefore bound to fail.

Mr Ryan submitted that the complainant has failed to particularise her claim of discrimination, and in particular, she has failed to establish a comparator for the discriminatory grounds.  She has failed to identify how the respondent’s actions involved treating her differently to another person based on her gender and family status.

It is the respondent’s case that the complainant’s claim rests on an unsupported assertion and comes nowhere towards meeting the threshold laid down to establish a prima facie case of discrimination.

Referring to s.85A (1) of the Employment Equality Act, and the burden of proof on a complainant to set out the facts from which it may be presumed that discrimination has occurred, Mr Ryan said that this requires the complainant not only to establish the primary facts on which she relies, but also, that the facts are of such significance to raise an inference of discrimination.  Referring to the decision of the Labour Court in Rotunda Hospital v Gleeson[10], Mr Ryan asserted that prima facie evidence has been held to comprise,

“Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.”

Based on the very concrete concerns regarding the website project which have been set out in the respondent’s submission, Mr Ryan argued that, based on the factual matrix of this case, no reasonable person could conclude that discrimination has probably occurred.

Like Mr Jacob, Mr Ryan also referred to the decision of the Labour Court in Southern Health Board v Mitchell (footnote 3).  He said that the mere reference by the complainant to discrimination on gender and family status grounds does not, in any way, discharge the prima facie burden that rests on her in bringing this complaint.  In Graham Anthony & Company Limited v Margetts[11], the Labour Court expanded on the potential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established:

“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.”

Finally, Mr Ryan quoted significantly from the decision of the Labour Court in Melbury Developments Limited v Arturs Valpeters (footnote 4) which was also cited by Mr Jacob.  The relevant paragraph is recorded at page 5 above.  Mr Valpeters claims that he was discriminated against because of his race.  Finding that he did not meet the burden of proof, the Labour Court held that,

“In this case, it was submitted that the Complainant was treated badly by the respondent and the Court was invited to infer that he was so treated because of his race.  Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably.  All that has been proffered in support of that contention is a mere assertion unsupported by any evidence.”

Mr Ryan submitted that the complainant resigned on March 14th 2022 because she got a better job.  He pointed to the fact that she was willing to work out her notice and she left six weeks later.  During her notice, she submitted a grievance about bullying.  The outcome of the grievance investigation was that the organisation could have done some things better, particularly around online meetings.  The investigator concluded that bullying did not occur.  The complainant did not appeal against this finding.

Mr Ryan concluded by saying that it is the respondent’s position that the complainant has failed to discharge the evidential burden and she has failed to establish “even a prima facie case of discrimination.”  He said that “the fundamental core issue is that the complainant is shoe-horning a complaint of discrimination into a complaint about bullying.” 

Opening her evidence, the complainant described her commencement in the role of corporate campaigns manager in April 2015.  She was responsible for two campaigns, Shine a Light and Sponsor a Star.  In early 2018, she took on the role of digital media and marketing manager, while continuing to do her old job.  She was promoted in May 2018.  The complainant said that she loved working for Focus Ireland, although much of the fundraising was done out of hours.  She also volunteered for the family evening service.  She described the organisation as “a fantastic workplace.”

The complainant said that she decided to become a sole parent through IVF and she became pregnant in January 2019.  She informed her employer around April that year. 

The complainant said that she had a lot of meetings with the CEO, Mr Dennigan, and the head of advocacy, Mr Allen.  The organisation had engaged an advertising agency to conduct market research and the findings were presented around July 2019.  The complainant said that one of the findings was that the public was less likely to support single parents over families.  The complainant said that she didn’t think that such attitudes still existed.

Seven months into her pregnancy, around late August or early September, the complainant said that she was responsible for a photo shoot which was done every two years or so depicting homeless people.  She said that her job was to agree a set of photos to be held in a photo bank.  The complainant said that she was instructed by the previous director of fundraising only to depict married parents in the photoshoot.  She said that she was told that people in parental roles must show a wedding ring.  She said also that the reason was that the research findings presented by Mr Allen indicated some negative attitude to single parents.  She said that she provided a “prop” wedding ring for the actors, to wear.  Some of the actors were staff and the complainant said that they were uncomfortable about the instruction, but she said that she tried to play it down.

The complainant went on maternity leave on October 15th 2019.  Prior to that, she said that, because she was involved in high profile projects, she made presentations at a lot of executive team meetings.  Before each meeting, presenters were required to get their presentations approved by their director.  She said that she always got very positive feedback.

The complainant said that her first child was born on October 20th 2019 and she returned from maternity leave in July 2020.  As the country was now in pandemic-mode, a computer was delivered to her home and she began to work from there.  The complainant said that executive team meetings became extremely difficult.  She said that questions came hard and fast and the questioners were interruptive and hostile.  She said that she thought that the pandemic had made people stressed.  She spoke to her manager, Ms Carr, who, the complainant said, told her that she didn’t know why the meetings were like that.  She said that Ms Carr spoke to Mr Dennigan and Mr Allen and that she got an undertaking that the situation would not be repeated.

In September 2020, the complainant told Ms Carr that she was pregnant with her second child.  She said that she had a very difficult time when she presented to the executive team meeting on two occasions.  Describing the executive team meetings, the complainant said that she told Ms Carr how she was feeling about them.  She said that she didn’t always get to the end of her presentations and that Mr Dennigan and Mr Allen would ask her questions while she was presenting.  She said that they repeated back to her things she said, as if what she had said was absurd.  She said that both were “highly charged and emotional” and that Mr Dennigan threw his hands up in the air.  She said that, after every meeting, she told Ms Carr how she was feeling.  She said that Ms Carr replied that she didn’t know what was going on.   

The complainant described a meeting in February 2021 as “particularly harrowing” with Mr Allen asking one question after another without giving her time to answer.  She said that she found that her voice was trembling and that she couldn’t answer questions. 

Later that day, the complainant fell down the stairs in her house.  She said that she informed Ms Carr, but she had to attend a meeting remotely with her the next day.  Two days after her fall, interviews were being held to find a replacement for the complainant when she was going on maternity leave and Ms Carr sent her an email with a schedule of interviews that were to last for four hours.  Referring to a WhatsApp message from Ms Carr after she had a check-up at the hospital, the complainant said that she found Ms Carr’s response cold.  A copy of the WhatsApp exchange was included in the complainant’s book of documents and reads as follows:

From Ms Carr at 18.20 on February 2nd 2021:

“Hey, hope you got on okay at the hospital.  Thinking of you xxx”

From the complainant at 20.08:

“Thanks, they were more reassuring today so better for peace of mind.  I’m really broken up though and raging about it.  Anyway, at least they’ll heal…”

From Ms Carr at 20.56

“God Aoife it sounds horrendous.  Glad you got the reassurance.  Glass of wine in the bath might help.”

The complainant said that she was upset about this message, which she felt was uncaring and cold.

Referring to the website project, the complainant said that when she returned from her first maternity leave in May 2020, she got approval from Ms Carr to develop a new website.  The project started in January 2021 and the complainant went on maternity leave in March 2021.  Her second baby was born on April 7th and she returned to work in November 2021.  Two days after coming back from leave, she said that Ms Carr looked for a report for the CEO on the learnings from the website project.  The person who was covering for the complainant while she was on maternity leave was still in the organisation and Ms Carr asked him and the complainant to attend a meeting with the CEO.  She said that Ms Carr met with her colleague and they produced the learnings document. 

The complainant said that every executive team meeting after that got progressively worse.  She said that Mr Dennigan and Mr Allen “were animated” and that she wasn’t allowed to answer questions.  She said that they were firing questions at her and repeating her words back to her.  She said that she was at home on her own after the meetings and the first thing she normally did was phone Ms Carr.  She said that questions from the executive team used to be filtered through the line manager, and the impact of the questioning was wrecking her head.  The complainant said that she went to her doctor and explained that she was finding the meetings a terrifying experience.  She was prescribed medication for situational anxiety, which she said, helped her condition.

In February 2022, the complainant said that she asked Ms Carr if she could have a meeting with her and Mr Dennigan and Mr Allen to discuss her concerns about the executive team meetings.  She said that she wanted to have a discussion in a less formal setting and she wanted to ask Mr Dennigan and Mr Allen what they needed from her.  The meeting took place remotely.  The complainant said that she opened the meeting by making an appeal and asking, “what’s wrong?” and “why are things so difficult” and “what can I do to resolve the problem.”  She said that she hardly spoke then, and that Mr Allen became emotional, tutting and shaking his head.  Eventually, she said that Mr Allen left the meeting abruptly.  Ms Carr and Mr Dennigan remained online and the complainant said that she “reached out to Pat.”  She asked him, “what has changed so much?” but she said that he dismissed her question and asked her for a timeframe of work that had been completed in the past.  She said that she felt that Mr Dennigan wanted to leave the meeting.  Following this encounter, the complainant said that she sent an email to Ms Carr telling her that she didn’t want to attend any more executive team meetings.

Mr Jacob asked the complainant if she spoke to anyone in HR about her concerns.  She said that she soke to the HR manager who attended one of the meetings and she advised the complainant about the grievance procedure.  She said that she didn’t submit a grievance until after she handed in her notice because it’s difficult to remain in work if you have submitted a grievance.  She said that she had children at home and that she didn’t want to impair her mental health.

In March 2022, the complainant said that one of her colleagues told her about a job that she might be interested in.  She said that she felt that she would get the job easily enough.  She said that it had been made abundantly clear to her that she had no future in Focus Ireland.

Asked by Mr Jacob why she submitted a grievance after she handed in her notice, the complainant said that she had done nothing wrong and that she had worked diligently for Focus Ireland.  She said that she had made her decision to become a single parent partly because of her job in Focus Ireland she asked, “why was I having to change jobs?”

As part of the investigation into her grievance, the complainant said that she had two online meetings with Ms Woods.  She said that she told her about the scenario with the photo shoot.  She said that Ms Woods said that she would recommend that Mr Dennigan and Mr Allen review the recordings of the executive team meetings.  The complainant said that she sent three emails to the CEO looking for the recordings of the meetings, but she got no reply.  She said that she received the recording of one meeting which has been redacted.  She said that the minutes of the meetings are also redacted.

Mr Jacob asked the complainant why she had such a bad relationship with Mr Dennigan and Mr Allen.  She replied that she had a good relationship with them until she returned from maternity leave.

Cross-examining of the Complainant

On behalf of the respondent, Mr Ryan referred to the fact that, on August 3rd 2022, the complainant submitted an initial complaint alleging unfair dismissal.  The complainant said that the e-complaint form was submitted by her solicitor, and after it was sent to the WRC, she said that she told him that she didn’t consider her complaint to be about unfair dismissal.  Mr Ryan referred to e instant complaint, under the EE Act, submitted on August 29th 2022.  On the e-complaint form, the complainant indicated that the most recent date of discrimination was April 28th 2022, which was her last day at work.  The complainant said that she couldn’t remember what the date relates to.

In the narrative of her complaint, the complainant referred to a timeline of events from July 2020, after she returned from her first maternity leave, until she left the organisation in April 2022.  The complainant agreed that her complaint is centred on “the most distressing incidents” at the executive team meetings.  She said that most of the problems occurred at these meetings.

In response to Mr Ryan’s question, “Are you saying that your complaint is about bullying and harassment?” the complainant replied, “Yes.” 

In response to the next question, “Is it about anything else?” the complainant replied, “I don’t think so.”

The complainant agreed that there is no reference in her complaint form to the photo shoot in August or September 2019.  She agreed that it was the role of the head of digital media and marketing to take the lead in the organisation with regard to marketing and advertising.

Mr Ryan referred to page 4 of the complainant’s contract of employment, which contains a clause headed, “Grievance Procedure.”  The complainant said that she recalls reading her contract.  She agreed that she had notice of the existence of the grievance procedure and that it was open to her to invoke the grievance procedure regarding her concerns about the photo shoot.  She agreed that she didn’t raise a grievance about being discriminated against because parents depicted in the photo shoot wore wedding rings.

Mr Ryan referred to the job description for the complainant’s role as digital media and marketing manager.  He referred to the reference at page 1 of the job description to the importance of the organisation’s online presence and the “crucial role” of the job-holder “in ongoing digital transformation across the organization, advising on cross-functional teams and committees, contributing expertise in digital platforms and resources and working with and managing third party suppliers to deliver the strategy.”

The complainant accepted that she had a crucial role in this regard.  She accepted also that a core element of her responsibility was website management and development.    

Referring again to the photoshoot in 2019, the complainant agreed that she was well placed to raise an issue about how it was done.  She agreed with Mr Ryan that she raised no concern about it until three years later, when she met Ms Woods as part of the investigation into her grievance.

The complainant agreed with Mr Ryan that, in fulfilment of her role as strategic digital and marketing manager, she had a responsibility to present at executive team meetings.

Referring to the WhatsApp exchange between the complainant and Ms Carr on February 2nd 2021, the complainant agreed with Mr Ryan that Ms Carr’s message was “warm and friendly.”  He put it to the complainant that her allegation that the workplace was “cold” towards here and that Ms Carr was cold is unfounded.  The complainant replied that Ms Carr didn’t phone her, but that she expected to attend a meeting the following day and then, the next week, she was expected to sit through four hours of interviews.  She described this as “a very cold response.”  She said that she and Ms Carr worked closely together and had been friends.  She said that the WhatsApp message may appear to be warm but that it doesn’t demonstrate warmth.  The complainant said that the suggestion to have a glass of wine in the bath was out of touch with her situation, being pregnant and bruised.  She agreed with Mr Ryan that she never raised an issue about this text message.

Mr Ryan referred to a message the complainant sent to someone in the organisation, possibly in the HR department, on Monday, February 8th, regarding the interview schedule for Thursday, February 11th.  The complainant asked for the interviews to be spaced out so that she wouldn’t have to sit continuously for a long time.   Mr Ryan pointed to this request as an example of the complainant being capable of bringing attention to matters that concerned her.

Mr Ryan stated that, without prejudice to his application regarding the complainant’s failure to establish an inference of discrimination based on her prima facie evidence, he intended to present the evidence of the respondent’s witnesses to her.

The complainant disagreed with Mr Ryan’s contention that her complaints about the conduct of the five meetings she attended with the executive team arose from difficulties with the website project.  She accepted that the CEO, Mr Dennigan was the project sponsor and that he had overall responsibility for the delivery of the project.  As director of advocacy, Mr Allen also had an interest in the outcome of the project.  The complainant agreed that the function of advocacy relied on the website.  The complainant could not recall that the original completion date was May 2021, but she agreed that it wasn’t completed by then.

Mr Ryan referred to the project being “best with difficulties and delays.”  He said that there were problems with scheduling of the project plan, resource allocation and the estimation of the work required.  The complainant said that she didn’t recall difficulties under those headings.  She said that there was a big delay with the appointment of an agency.  She disagreed with Mr Ryan that, when she was the project leader, she made commitments regarding the delivery of work that were not met.  She said that she didn’t know that the project was eventually completed five months late, on September 20th 2021, by the director of fundraising and marketing, Ms Carr.  She said that she was on maternity leave between March and November 2021.

Mr Ryan said that the evidence of Mr Dennigan and Mr Allen will be that the issues that the complainant considers to be bullying were their legitimate responses to her failure to deliver the website project.  The complainant disagreed and said that their treatment of her at the meetings had nothing to do with the website project.  When Mr Ryan asked her what it was about, she said that she didn’t know.

The complainant agreed that Mr Dennigan was concerned about the delay with the launch of the website because of the impact this was having on the organisation’s fundraising abilities.  She said however, that the delays occurred while she was on maternity leave.  She said that, at the first two meetings, the project hadn’t started and, by the time of the last meeting, the website had gone live.  The complainant disagreed that the concerns raised by Mr Dennigan and Mr Allen were not directed at her personally, but that they were about the delays in completing the website project.

Mr Ryan said that Ms Carr will give evidence that the complainant disregarded the concerns of the executive team about the website project.  She will say that she provided feedback and support to the complainant to get the project advanced.  The complainant said that there was no way that she would disregard the concerns of the CEO or a member of the executive.  She did not agree that Ms Carr tried to support her.

Mr Ryan referred to the PowerPoint presentation entitled, “Website Learnings 2021” which was included in the respondent’s book of documents.  The complainant disagreed with Mr Ryan that she gave instructions to her team not to capture the learnings from the project.  She said that she completely disagreed with evidence that Mr Ryan said will be given by Ms Carr that she refused to take her instructions regarding the learnings aspect of the project.

Mr Ryan referred to an email dated February 15th that the complainant sent to Ms Carr regarding a meeting of the executive team the previous day.  The purpose of the email is to get Ms Carr’s support to ensure that the executive team was aligned with the complainant’s plan for the strategic development of the website.  Mr Ryan remarked that the tone of the email demonstrates a warm, friendly and supportive working relationship between the complainant and Ms Carr.  The complainant replied that it was “just me saying what we should do next.”  She agreed that Ms Carr accepted her suggestion of a meeting to discuss the issues she raised in her email.

Mr Ryan then referred to an email from Ms Carr to the complainant, sent on Monday, March 14th 2022, which addressed issues arising from an executive team meeting the previous Friday.  The complainant agreed that the tone of Ms Carr’s email shows that she was accessible and informal.  She agreed that Ms Carr was particularising the issues that needed to be addressed so that the CEO could respond to her presentation.  Mr Ryan suggested that the email shows that Ms Carr was giving the complainant direction as to how she could present at the meeting and how best to navigate the requirements of the executive.  The complainant disagreed and said that her request at the meeting was “to address the behaviour of Pat and Mike.”  Mr Ryan said that the respondent had serious concerns about how the complainant was handling the website project.  The complainant said that the only thing she was concerned about was the head-shaking, tutting and the emotional responses.  She said that she was attempting to address this.

Mr Ryan asked the complainant if there was any reason why the work of Focus Ireland was not her priority.  She replied that Focus Ireland was always her priority.  Mr Ryan referred to the complainant’s letter of resignation, dated March 14th 2022.  She agreed that, when she sent the email on March 14th at 8.19am, she had already decided to resign.  She said that she worked out her notice because this was in accordance with her contract of employment.  She said that it never occurred to her not to work out her notice and she just asked not to have to attend executive team meetings.

Mr Ryan referred to the text of the complainant’s resignation letter, which he suggested “speaks of a departing employee who was happy in her role:”

“Please accept this letter as resignation from my position as Head of Digital and Marketing at Focus Ireland. I will work out a notice period until the last day of April 2022.

Thank you for the many opportunities I have enjoyed at Focus Ireland.

I wish yourself and the organisation every success in all endeavours on your mission to end homelessness in Ireland and support as many people as possible on their journeys.

Please don’t hesitate to let me know if there’s anything further I can do to aid the transition of my departure from the role.”

The complainant said that the content of her letter is about the organisation.  Mr Ryan noted that there is no reference in the complainant’s resignation letter to discrimination on the grounds of gender or family status.

Mr Ryan referred to an email from Mr Allen to the complainant on April 5th 2022.  The complainant agreed that the letter identifies sources of frustration for Mr Allen.  She said that couldn’t give “a clear ‘yes’ or ‘no’ answer” to Mr Ryan’s suggestion that the letters contains “ample evidence of problems and difficulties with the website project.”  She said that the frustrations identified by Mr Allen did not apply to her.  She said that she sent the email to Ms Carr to try to make sense of it.  Mr Ryan submitted that, based on some specific references in Mr Allen’s letter, it is remarkable that the complainant is arguing that it didn’t apply to her.  He selected paragraph three which as follows:

“The issue of the Google scholar is just one such example. Focus Ireland invests strongly in our research work, the credibility it gives us features in our brand identity and in our strategic plan.  One of the primary ways that researchers and policy makers find relevant research materials is through google scholar, so having our material indexed on that is crucial to us reaching this key audience.  I raised many years ago and after many years of trying, Lauren made a lot of progress on this – but this appears to have been lost in the new site and most of our research does not appear when you use google scholar to search, say, family homelessness.  Since our meeting, we have learned that we will not know for sure whether it is lost for several months, so at best all our research will be essentially invisible for almost a year – but it may be longer.”

The complainant replied that Google Scholar was never discussed with her.  Mr Ryan submitted that, in this paragraph, Mr Allen was setting out his frustrations about her failure to address a problem.  The complainant agreed that Mr Allen was expressing a concern.  Mr Ryan referred to paragraph five of the same letter:

“On hearing that one of the stakeholders has important issues which you are not aware of, a constructive response would have been to start a process to document those issues and see how they can be addressed.  Instead you still insist that the web-site is nearly perfect and only needs a few tweaks.”

Mr Ryan said that Mr Allen was “calling out something related to you.”  The complainant said that she didn’t know what to do with this letter and that she gave it to Ms Carr.  She agreed that Mr Allen was “expressing a concern.”

Mr Ryan referred to the email that the complainant sent to Ms Carr the day after she received this email from Mr Allen.  In the email, Mr Ryan suggested that the complainant highlights a degree of tension around workflows, but nothing about discrimination.  The complainant agreed with this observation.  She also agreed that, in the formal grievance that she submitted to Ms Carr on April 12th 2022, her concern was about alleged bullying, and that there is no reference to discrimination.  She said that she is a lay person and that she didn’t refer to any law.  She agreed with Mr Ryan however, that, in her grievance letter, she did not say that she was discriminated against.  Mr Ryan referred to paragraph 12 on page 3, where the complainant said,

“I would like to reiterate here that my formal grievance concerns the bullying I experienced in the Exec meetings at the hands of Pat and Mike.”

Mr Ryan referred to the letter dated May 12th 2022 from the organisation’s HR manager, Ms Barbara Dempsey, in which Ms Dempsey offered the complainant the option of resolving her grievance through mediation.  On May 20th, the complainant replied to Ms Dempsey and said that based on her considerable experience of mediation, it was not an appropriate option.

Mr Ryan referred to the constructive engagement of Mr Dennigan and Mr Allen in Ms Woods’ investigation.  The complainant replied that everyone is required to adhere to the grievance procedure and she couldn’t answer to how constructively they engaged.  She agreed with Mr Ryan that, at the conclusion of her report, Ms Woods made no finding of bullying.  She said however, that there was meant to be a review of the recordings of the executive team meetings and that this this is absent from Ms Woods final report.  The complainant disagreed that the recommendations in Ms Woods’ report are within the realm of good employment practices.  She said that she lost faith in Focus Ireland when the recordings were not reviewed.

Mr Ryan suggested that it reflects well on the organisation that an investigation was carried out, even though the complainant had resigned.  The complainant replied that the grievance procedure was followed, and we don’t know if it reflects well.

Concluding her evidence, the complainant said that there was no break between her departure from Focus Ireland at the end of April 2022 and her commencement in a new role immediately afterwards.

The Legal Framework

The legal framework prohibiting discrimination on nine specific grounds is set out at section 6(1) of the EE Act. 

“…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 sub-section (2), in this Act, referred to as the ‘discriminatory grounds’…”

At subsection (2)(a), the gender ground is listed as one of the nine discriminatory grounds.  In the context of discrimination on the ground of gender, section 6(2A) refers specifically to pregnancy and provides that,

“… discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.”

Subsection (2)(c) provides that “the family status ground” is also one of the nine discriminatory grounds. 

The Equality Act 2004 inserts a new section, 85A, into the EE Act:

“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 this section is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility is on the complainant to show that, based on the primary facts, she was treated less favourably than a man and/or a person with no children and/or a married person with children.  The representatives for both sides referred to the explanation provided by the Labour Court in its decision in Melbury Developments v Arturs Valpeters (footnote 4) which addresses 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 Primary Facts

At the hearing of this complaint, the following primary facts emerged:

1.       In or around April 2019, the complainant had been working for the respondent for four years when she informed them that she was pregnant.  She went on maternity leave in September and her first child was born the following month.  She returned to work in May 2020, by which time Covid-19 restrictions meant that everyone who could was working from home.  The complainant was occasionally required to attend executive team meetings which were held online.  She said that she found it difficult to be heard at these meetings, and that she was interrupted and interrogated.

2.       In September 2020, the complainant announced that she was pregnant with her second child. 

3.       In January 2021, the respondent embarked on a project to upgrade its website.  As the head of digital media and marketing, the complainant was the lead manager for this project.

4.       On February 1st 2021, at a meeting she attended with the executive team, the complainant claims that she was bullied by Mr Allen, who, she claims, asked her questions without giving her time to answer.  That evening, she fell down the stairs in her house.  She complains about how she was treated by her line manager, Ms Carr, who, she said, expected her to attend a meeting on February 2nd and to do four hours of interviews two days later.

5.       The complainant went on maternity leave in March 2021 and she had her second baby on April 7th.  The website project was completed in September 2021, with input and guidance from Ms Carr.

6.       The complainant returned to work in November 2021.  As the project sponsor, the CEO, Mr Dennigan initiated a “lessons learnt” exercise, to examine how the website project had been conducted and the lessons that could be applied to future projects.  The outcome from this initiative was presented to the executive team in January 2022.  The complainant did not refer to this in her evidence. 

7.       The complainant attended a meeting with the executive team on February 14th 2022.  At this meeting, she presented her own findings from the “lessons learnt” exercise.  It is the respondent’s position that she minimised the extent of the delays in the project and the impact this had on other departments in the organisation.

8.       The following month, on March 14th 2022, in response to a request from the complainant, she attended a meeting with Mr Dennigan, Mr Allen and Ms Carr.  She said that the objective of the meeting was to address her concerns and she asked Mr Dennigan and Mr Allen what they expected of her.  She said that Mr Allen became frustrated and logged out of the meeting.  Later that day, the complainant wrote to Ms Carr and submitted her resignation, effective from the end of April 2022.  In her letter, she made no reference to being bullied or to being discriminated against.

9.       On April 5th, Mr Allen wrote to the complainant to clarify for her the problems he experienced with the website project and the effect on his team of the failure to make progress in a timely manner.  In her evidence, the complainant said that she didn’t know what to do with this letter and she sent it to Ms Carr.

10.   On April 12th, the complainant submitted a formal grievance concerning how she was treated by Mr Dennigan and Mr Allen at executive team meetings she attended since she returned from maternity leave in September 2020.  In her evidence, the complainant agreed with Mr Ryan that she attended five such meetings to present on her work.  She provided dates for two of the meetings, February 1st 2021 and February 14th 2022.

11.   In accordance with the “second informal process” of the grievance procedure, the independent consultant who investigated the complainant’s allegations of bullying made no finding regarding bullying.  The investigator made a series of recommendations regarding how online meetings should be conducted and this outcome was provided to the complainant on September 15th 2022.  The complainant did not reply and did not seek to proceed to the formal part of the procedure. 

As set out by the Labour Court in the Valpeters decision, to establish that discrimination has occurred, I must find that, in respect of how she was treated in the executive team meetings that she complained about, “there was evidence of some weight from which it could be concluded” that the complainant was treated less favourably because she is a woman and because she is a single parent.

Findings

The complainant’s allegations regarding bullying have been investigated by her former employer and she did not appeal against the investigator’s findings.  It is not my role here to re-open that investigation or to make any determination regarding her claim of bullying.  It is my view however, that what started out as a complaint of bullying has, with no basis in fact, been converted into an allegation of discrimination.

In her submission, and, in her evidence and cross-examination, the complainant did not point to a single incident or remark on the part of her employer that inferred, even remotely, that she was treated less favourably because she is a single parent.  Apart from suggesting that the person who replaced her was not challenged as robustly as her at meetings, she provided no comparator to indicate that men or married people were treated more favourably compared to her.  I have carefully reviewed the complainant’s evidence and, it is my view that the fact that she became a single mother while she was employed by the respondent had no bearing on how she was treated by the members of the executive team.

The photo shoot that occurred in 2019 is outside the timeframe for which I have jurisdiction to consider a complaint of discrimination; however, I wish to make a brief comment on this because the complainant attempted to conflate the findings of the ad agency with an assumption that the respondent is biased against single parents.  The complainant was informed by her line manager prior to Ms Carr that the ad agency that conducted research for them found that the public are inclined to be more generous to homeless parents who are married compared to homeless parents who are single and she instructed her to include married parents in the photo shoot.  The findings of a research agency regarding the willingness of the public to donate and the use of that information is not an indication of the organisation’s culture.  If the depiction of married people in the photo shoot caused a concern for the complainant, she was a senior professional in the organisation at the time and, at the very least, she could have had a conversation with her then line manager about her feelings.  The fact that she did not do so leads me to conclude that the use of couples in the photo shoot was not a matter of concern to her at the time.

The complainant referred to her treatment by her line manager after her fall at home in February 2021 as “a cold response.”  This incident is also outside the statutory timeframe, but I wish to respond to the contention that it is an example of discrimination.  A cold response is not a discriminatory response, and it is apparent to me from the text message that the complainant submitted in evidence that she and her manager were close and friendly.  The complainant raised no complaint about this text message when it was sent and, in her cross-examination, she agreed that the response was, in fact, warm and friendly.

It is not unusual for a manager to find themselves under pressure when presenting to their organisation’s executive team.  It is clear from her evidence that the complainant found the five meetings that she attended between September 2020 and February 2022 very challenging.  Her return from maternity leave in November 2021 coincided with the exercise to learn lessons from the website project, and it is apparent that there was a difference of opinion between the complainant and the CEO and the head of advocacy about the impact of the delays in the project on the organisation.   The website project was top of the agenda for the CEO and the director of advocacy and, from November 2021 onwards, to a greater extent than before, the complainant must have felt under the spotlight and perhaps under pressure.  I accept her evidence that some of her encounters with Mr Dennigan and Mr Allen were challenging, but I can find no connection between these encounters and the fact that the complainant had just returned to work after having her second baby.  The complainant resigned after her final online meeting with Mr Allen and Mr Dennigan on March 14th.  Mr Allen logged out of the meeting before it was finished.  On April 5th, he wrote to the complainant to explain the reasons for his frustration:

“Further to our meeting the other week, I thought it would be useful to write down the reasons for my frustration at progress and plans for the web-site, as you appeared to be surprised by my perspective on these.  I have been away or on leave for a short while, so apologies for the delay.

I feel that my team and I have been raising web-site issues which are important for us over several years, and we have repeatedly been told that these have to wait.  The reasons for the wait change over time – staff changes, new site, other priorities etc.  I don’t have a problem with this as such, there are other priorities, such as fundraising.  The frustration arises when the reason for the wait has been resolved, and we find that our issues are not in any waiting list.  They need to be raised all over again – and we are then told that nobody has ever heard of them before.  This appears to be happening yet again.”

These are just two paragraphs in a long letter in which Mr Allen explained the effect of the delay addressing the priorities of his team and the frustration caused by this.  He concluded his letter as follows:

“I hope that give (sic) you some indication of the causes of my frustrations, and wide range of important issues which we need a plan to address. I would be happy to discuss any of these issues with you, so if you want to discuss any of them further please let me know.”

Most of the complainant’s focus in her evidence was on how she was treated by Mr Allen and Mr Dennigan at the executive team meetings.  It is apparent from Mr Allen’s letter that there was a context for the tension she experienced and that there was a disconnect between the complainant and the two members of the executive team regarding how she handled an important aspect of her job.  Mr Dennigan and Mr Allen were clearly unhappy about how the website project had been managed.  It is apparent also that Mr Allen was exasperated because the complainant didn’t share his views about the impact on the organisation of failing to do certain things.

I note the findings of the Labour Court in Graham Anthony & Company Limited v Margetts (footnote 12), to the effect that,

“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.”

Robust challenging of an employee about their work is not discrimination, even if that employee is a single parent, or if they fall into any of the nine grounds of discrimination set out at s.6(2) of the EE Act.  From my examination of the evidence adduced by the complainant, I can find no facts that lead me to presume that she was discriminated against and her complaint fails.

I have concluded that the complainant’s evidence is not sufficient to for me to presume that she was discriminated against on the ground of her gender or family status and, for this reason, I decide that this complaint is not well founded.

Discrimination, gender, family status