Complainant

Respondent

Parties

Tomislav  Orecic

Occipital Ltd

 (amended on consent))

Representatives

  Appeared In Person

Mark Comerford 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-00062400-001

26/03/2024

On 26 March 2024, the Complainant, a Product Associate submitted a complaint against his employer the Employment Agency who had placed him on Client A Plant on 14 June 2021.   The complaint stated  that he was discriminated against by reason of his Civil Status.

He made a further complaint that he had been victimised. He offered the most recent date of Discrimination as 22 March 2024.

The Complainant subsequently left the employment and relocated back to live with family in Croatia.

The Respondent named as an Agency   was represented by IBEC, who clarified that Occipital Ltd was the correct legal entity in the case. This was amended on consent at hearing.

On 11 November 2024, I wrote to the Complainant, on foot of having received a written submission from the Respondent and seeking a written submission from the complainant side.

I sought a chronology of events, all relevant contracts, pay slip, a written response to respondent submission, if wished.

I referred to the WRC Guidance document and incorporated a plan for progression of the hearing day.

I received some documents, but not an extended written chronology of events.

The Complainant took an oath to accompany his evidence. The three Respondent witnesses took the affirmation.

At the conclusion of the hearing, I sought a job description and an unredacted version of a December 4 record.

The Respondent made an application that the Company where the Agency placed the Complainant should be anonymised in the eventual decision due to Commercial sensitivity. The Complainant agreed to this .  I progressed accordingly .

  I will refer to the Work location  as Client A in the course of my decision.

 Note a recent  UK EAT case of

 F v J [2025] EAT 34, on a claim for Discrimination on grounds of disability, where the identity of the parties was found not to be critical to public understanding of the case.

At the opening of the hearing, I declared that during the Covid 19 pandemic I had worked for CPL Agency as a Vaccinator for a short period. This was accepted by both parties, without objection.

I wish to apologise to the parties for the delay in submitting this decision as I had a period of unexpected sick leave.

The Complainant submitted a complaint of Discrimination on Civil Status, denial of access to training and Victimisation on 26 March 2024. He outlined that he had been suspended “after I reported unequal treatment to his employer “He mentioned that he had activated an informal grievance against the client but had since been suspended.

He first named his employer as CPL Solutions, which has since been amended on consent.

He participated in an internal investigation of his grievance, launched by the respondent and was dissatisfied with the outcome received in March 2024.

The Client A then raised a complaint against him which led to his suspension on March 22, 2024, 2024, the outcome of which postdated his complaints to the WRC.

The Complainant resigned his employment in June 2024 and has returned to live in Croatia with his family.

The Complainant wanted the hearing to know that he had filed his complaints at the Agency while under stress and prior to the birth of his third child.

The Complainant placed a change in his otherwise satisfactory working relationship to Summer of 2022, when the son of a long-term employee at Client A came to work at the business. He reported this worker on many occasions but was not heard.

The Complainant submitted that he was also overlooked for training at the plant.

The Complainant was working under the assurances that he would be accommodated with more flexible shift work, following his wife’s employment on site.

He maintained that he was denied overtime, which was subsequently softened to being granted some extra days.

The Complainant submitted that in February 2024, he filed a complaint against Client A to his employer, the Agency:

“Where I say that I am treated unequally, that I am discriminated against and humiliated because even my colleagues who started working in the company after me received training and shift work and I am left on weekends, without extra days and without training opportunities …. “

The Complainant was dissatisfied with the grievance investigation, which he maintained triggered a retaliatory report by Client A to his employer involving operational concerns.

The Complainant contended that his experiences at work had negatively affected his health and financial Status and sought compensation “for all the pain and discrimination and the unequal treatment towards me by the workplace of Client A because I believe that I did not deserve to go through all this. I did my job honestly, without a single mistake in good relations with all my colleagues and I am devastated and humiliated as a person because others were favoured by the management. My only mistake is that I reported an irregularity, and I was punished for that “

The Complainant exhibited medical certificates from 2023 and 2024 due to an unspecified medical condition. He exhibited a medical certificate during June 2024 which reflected work related stress.

The Complainant exhibited extensive documents which related to his unease in his work placement at Client A during 2022, 2023 and 2024.

He referred to the cross over of events where his wife had also had a negative experience at the company and exhibited some correspondence which pertained to a live claim on her behalf against the respondent at the WRC.

At the outset of the hearing, I explained the grounds associated with the claim, the burden of proof which applied, and I explained Section 74((2)(a) on Victimisation.

Complainant response to Preliminary Issue on Cognisable period for the claim:

The Complainant made a prehearing submission on this point.

 It is completely unacceptable to limit yourself only to the period stated by the defendant, for the reason that what is at work here is discrimination and unequal treatment that was carried out months before and after the complaint was filed, even though the majority of points regarding discrimination and unequal treatment occurred in the stated period. However, what happened after March 26 is closely related to the events, and I may or may not have assumed what and in what character will take place after my application to the WRC, and that it will lead me to the point where I will eventually have to leave the country, because especially what happened later and what is on the end when we put all together  one systematic abuse from the side of my superiors who were supposed to protect me and provide me with equal working conditions

At hearing he sought consideration of the full picture of events which postdated his complaint to the WRC, and which culminated in his resignation post sick leave in July 2024. I have made minor typo corrections in the complainant’s own text.

The Complainant gave evidence at hearing that he had commenced work on the Client A site in Summer 2021 as a Product assistant on a 24-hr week. He was employed by the Agency. He interviewed prior to his employment and once more pre permanency. He described that he had been happy in his job and worked Saturday and Sundays, days/ nights.

The Complainant confirmed that his Civil Status was married. He named his Comparator as also being married.

It was the Complainant case that he had been treated less favourably over the course of 1.5 years as he had been unsuccessful in his bid to obtain increased shifts and training.

He submitted that the change in his working relationship arose when a long-term employee’s son, Mr B arrived to work on site. During May or July 2022, he sustained an accident at work when chemical spilled on his trousers. This was not elevated to a Personal Injury case as he was not hurt. The incident was not recorded or investigated. He recalled feeling “doomed “after the accident and the unheard grievances. He clarified that the accident had not caused him harm.

On 3 July 2022, he reported the issue to Ms A and understood that his wife, who also worked on site, could access weekends and he would be allowed shift work, but this did not happen.

By November 2022 he had requested a relocation to another area on the Plant.

He recalled that between May 2023 and January 2024, he had been by passed for 30 extra shifts.

He had been denied any additional training between 14 June 2021 and 13 June 2024.

His sole training covered a 5-week period at the commencement of his placement in June 2021. He participated in a one-day induction.

He named his Comparator as Mr C, who was also married. He was unsure when he commenced at the business but thought it may have been 23/24 November 2023. He submitted that Mr C was an employee of Client A.

The Complainant submitted that he raised his need for further training to expand his role every month verbally with Mr B. He explained that his family needed him to secure more work. He was requested to trust his manager.

He identified an opportunity for shift work and additional training in November 2023 but was informed that there was no business need present to support this.

On 18 November 2023, he was requested to train Mr SD, but he was not licensed to train. He did the training but was humiliated by the request.

He left the floor in what was later referred to as an “unauthorised absence “on November 19, to avoid a repetition of the same request.

By December 2 and 3 December 2023, the Complainant felt very cut off from Client A and accepted that he left work early but also had pre booked annual leave.

He commenced sick leave on December 4, 2023, and had no communication. By then, he had formed the view that he was being managed out.

He raised a grievance at the end of January 2024. He met with the Hr Manager and received a written response which he deemed “unacceptable “.

The Complainant submitted that he had been suspended on 20 March 2024 and took issue with this as his annual leave was sanctioned and the interactions with his friend, Mr Z were through his personal phone.

I reminded the complainant that his complaint had been lodged on 26 March 2024, some 6 days into his suspension.

He submitted that he was found guilty on the conclusion of the disciplinary process in June 2024. The outcome was a written warning, and he was offered a return to work but had decided to leave the business and return to live in Croatia. He said that he could not accept being invited back. He believed that he had been the subject of rumours and unfair allegations about his reputation and had tried to seek the respondent help to assist him but was denied names.

The Complainant exhibited a copy of an appeal of a final written warning.

He exhibited updates on job applications from October 2023 which were external to both the respondent and Client A. He has not found new work.

When asked to outline the claim for victimisation, the complainant pointed to his suspension. He said that he had approved leave on December 3, 2023. Nobody checked his arguments. He submitted that he wanted to be recognised as a Victim in the systems of two Business partners in a “complicated system.”

He was seeking satisfaction.

The Complainant spent some time alluding to his dissatisfaction with his experiences at Client A site up to and including some allegations that he had damaged property during his period of suspension.

During cross examination, the complainant accepted that his Employer was Occipital ltd on his date of claim, 26 March 2024.

The Complainant confirmed that his claim for Discrimination on civil status grounds originated in May 2022 when his requests for extra shifts and additional training were not granted.

He accepted that the Client had inputted positively in his transition to permanency.

He confirmed that 18 and 19 March 2023 were the sole extra shifts given to him. He confirmed that a Mr X was given extra shifts on 18 May 2023 and in February 2024.

When probed on his understanding of the progression of the Disciplinary procedure, he confirmed his understanding of the allegations to be allegations of anti-social behaviour.

He contended his life was in danger in the aftermath of the unsuccessful grievance. He stated that he was under pressure as his family was expanding and he should not have been cast as a trainer.

He accepted that he received a set of documents as part of the process and was aware that he was offered access to a formal grievance procedure.

He felt very distant from his employer as the grievance manager did not display enthusiasm. He did not interview Mr Z, and he felt that he was not taken seriously.

He responded to Mr Comerford that he found the companies approach to training was inconsistent as Ms N received training before Summer 2023 and she was single. “They can use her more as she has no family “

He specified that the claim for Victimisation arose as the Client had reported him after he had raised a grievance.

He reaffirmed that he was progressing under the civil status ground.

Mr Comerford asked the complainant if the areas of dissatisfaction were so keenly felt at the time of his interview for permanency, why had he not raised them?

The Complainant responded in saying that he was advised that problems should not be ventilated at interview, and he took that advice.

He confirmed that this was his first time working for an Employment Agency. He was declared fit to return to work in February 2024 and there was no specific medical recommendation attached to his return to work.

He had not been participant in any performance review during his employment tenure. He accepted that he had not availed of post application feedback in relation to his bid to secure direct employment with the client.

He confirmed that he carried an enlarged sense of unease at that time, but this was his families only   income and he was under enormous stress to continue working.

When asked why he decided to interrupt the Disciplinary procedure live on 26 March 2024, by making a referral to the WRC? he replied that he felt that the disciplinary process was pre-determined, and he wanted the WRC to look at it objectively on the facts.

He did not see the need to be accompanied by representation as “It was my issue “He was not certain if he had been offered representation by his employer.

In his closing remarks, the Complainant requested that I consider the “full picture of unequal treatment “He contended that the Agency had failed to protect him from their client as he had received so many different reasons for many different facts.

He refuted that the grievance outcome from November 18 was an objective result, and he would never accept that he was guilty.

He submitted that he was stressed as a result of his work and “I lost my life in Ireland “and was now forced to live on €120.00 per week. He maintained that Client A had caused his family destitution.

He disputed that head count had reduced at the client site as the leavers were engineers not product associates. He was unfavourably treated when he was asked to tarin his comparator without a licence and when he looked for alternative work, he was ignored.

The Complainant undertook to produce a copy of his job description at my request. By way of follow up submission, the Complainant clarified that he had never received a job description from the Agency, his employer or Client A. He gave a synopsis of his training and shift work alongside a “description of the working day “This detail was shared with the respondent but as it was received post hearing, was not subject to cross examination. I also received the unredacted version of December 4, 2023, email.

The Respondent operates an Employment Agency and has denied the claims for Discrimination on Civil status and Victimisation.

The Respondent placed the complainant to work on the Client A site as a Level 1 Operator in June 2021.

Preliminary Issues: Statutory Time Limit.

The Respondent submitted that the cognisable period allowed for these complaints was 27 September 2023 to 26 March 2024. The Respondent took issue with being provided with documents by the complainant which veered outside this time limit and after the claims were submitted and that the case should run on the occurrences relied on during the cognisable period.

I explained that I would hear both Parties on this point and reserve my decision.

Confirmation of Respondent:

The Respondent pointed to an inconsistency in how the complainant had framed his complaint and there was now an ambiguity as to whom the complainant expected to respond to this complaint.

“I am directing this application to Client A, my workplace, not the Employer ….”

The Complainant clarified that the claim is against the named Respondent titled at the top of this Decision.

This was accepted by the Respondent who raised this point once more during cross examination of the complainant’s direct evidence.

Mr Comerford submitted that the Respondent would prefer a decision on the preliminary issues prior to opening the substantive case.

I informed the parties that I would listen to each party on the statutory time limits but would move to hear the substantive case before ruling on the preliminary issue.

Substantive Case:

The Respondent outlined that the Complainant had commenced employment as a Product Associate with a different named Agency, Flex source Solutions on 14 June 2021. He signed a permanent contract with Occipital Ltd on 19 June 2023. This second contract was exhibited. He was paid €24.63 per hour which was inclusive of shift allowance. The Respondent placed the Complainant on the Client A site.

By way of a dateline of events in the case, the Respondent led on two unauthorised absences by the Complainant from the Client A site over 18 and 19 November 2023.

On 19 November 2023, the Complainant formulated a grievance to the Respondent Associate Director, Ms Yvonne Walsh. The grievance was unusual as it was directed towards “the entire client “The complainant had not raised less favourable treatment on civil grounds or any other protected grounds during the course of his employment.

This document was heavily prefaced by a series of paragraphs “I didn’t mind when ……” in reference to the complainant’s progression in employment but centred on his high level of dissatisfaction in relation to the lack of availability of extra day and training. His wife’s departure from the company. His lack of progression to becoming directly hired by Client A following a short list and the occurrences of perceived injustice when staff members assumed roles and shifts excluding the complainant. He also took issue with being requested to train another employee.

He also confirmed that it was his intention to leave the business and return to “his profession “in his country of origin.

The Respondent discussed the potential routes to resolving the grievance and the complainant elected to progress under the informal route.

 Two weeks later on 4 December 2023, the Complainant contacted the Respondent to express a further dissatisfaction and to inform them that he had commenced sick leave.

He was provided with the details of the Respondent EAP details (Employment Assistance Programme).

On 25 January 2024, the Complainant clarified that he was returning to work but had decided to “give up on the further process “as he and his family had decided to return to Croatia on a permanent basis following expiration of parental leave.

The Respondent hosted a return-to-work meeting on 1 February 2024 and a stress risk assessment on 2 February 2024.

The Complainant returned to work on February 3, 2024.

On 6 February 2024, Ms North for the Respondent met with the Complainant regarding his grievance. He clarified that his issue lay not with one person but against Client A.

Ms North met with the Client, who requested a copy of the written complaint. They agreed to assign a Client A representative to meet with the complainant to formulate answers to his tabled questions.

This was provided on the complainant’s consent.

A Tri partite meeting took place between the Complainant, Ms North for the Respondent and Mr M on 27 February 2024.

The answers were framed on:

1 the period of time referred to in the complainant’s grievance co incided with a “quiet “period where head count was reduced in full knowledge of staff.

2 Weekend contract does not create a legitimate expectation for additional shifts.

3 Allocation of training places are limited and vary between departments.

4 The assessment for deciding Direct hires to Client A was operated by an external company. The Complainant was offered a 1:1 meeting to provide feedback on the assessment process and had declined.

Ms M undertook to follow up on the remainder of the grievances and revert.

The Complainant was dissatisfied with that approach and accused the respondent of adopting a partisan approach in support of client A.

On 19 March 2024, Ms North followed up on the Client A feedback which was superimposed on the original background of complaint. The Respondent confirmed completion of the informal route of grievance and prompted other options within the grievance procedure. This co incided with the complainant once more leaving the plant in what was described as

“Fourth unauthorised absence “

This was accompanied by disparaging remarks incorporated by text to the complainant’s manager.

Client A was dissatisfied by the complainant’s behaviour and sought intervention by the Respondent.

On 22 March 2024, the Complainant was informed that the Respondent had commenced an investigation into his 4 unauthorised absences off site and disrespectful behaviour towards a supervisor via text message on Tuesday 19th March 2024.

He was suspended from work to facilitate this investigation on 26 March 2024.

The Complainant submitted his complaint to the WRC on that date. He had informed the respondent that he was taking legal advice.

The Respondent argued that in order to successfully raise a prima facie case of Discrimination, where the complainant is required to present facts from which it can be inferred that he was treated less favourably than another person is, has been or would be treated on the basis of Civil Status.

Southern Health Board v Mitchell [2001] ELR 201

The Respondent contended that it takes more than mere association with a ground laid down under the Act to “establish a claim of discrimination “Facts of Discrimination must have occurred.

The Respondent disputed that the Complainant had met that burden of proof, Section 85A of the Act.

The Respondent denied Discrimination and pointed to the efforts made by the Respondent in tandem with Client A to seek to resolve the complainants’ issues regarding training.

The Respondent maintained that the claim for victimisation lacked particulars.

The Respondent sought that the circumstances of the case be viewed through the application of ADJ 38131 where the Adjudicator “found that although the complainant was poorly treated, there was insufficient evidence to make out that this arises from any discriminatory ground.”

The Respondent sought that the claim was without merit.

Evidence of Ms Z, Liaison for Respondent on Client A Site

Ms Z was aware of the 19 November email submitted by the Complainant. This centred on a grievance regarding training, hours of work and permanent position with the Client A. She passed this to Ms B.

Ms Z confirmed that from June 2023 to March 2024, a 41% reduction in agency head count occurred at the plant. There were 45 redundancies and 200 cessations. A Hiring freeze occurred. The Complainant was not placed at risk of redundancy.

Ms Z confirmed that Client A placed the hiring to the permanent position into the hands of an outside body to measure aptitude.

During cross examination, Ms Z confirmed that she covered all areas at the client site. She reaffirmed the reasons for the reduction in head count.

Ms Z also undertook the investigation into the complaints raised by Client A and found that the complainant had a case to answer under the Respondent Disciplinary Policy.

Evidence of Ms T, Client Service Delivery  

Ms T covered Ms Zs absence due to leave. She managed the complainants return to work meeting, where the complainant advised that he did not intend progressing with his grievance. She was aware of the informal grievance reactivation on February 2, 2024.

Ms T confirmed that the complainant was not deemed a risk on his return to work.

Evidence of Ms North, HR Business Partner

Ms S submitted that she had equipped the complainant with the grievance procedure and facilitated discussions aimed at addressing the grievance informally. She attended facilitated meetings with the complainant and the client. She denied the complainants allegations that she had sided with the respondent and client A over his side.

She suggested that the complainant consider representation.

 In March 2024, she provided the clients responses to the issues raised by the complainant in which he was displeased.

During the feedback on March 21, 2024, the complainant did raise the topic of his seeking the option of compensation for discrimination, but he had not raised any occurrences of discrimination.

During cross examination, Ms North clarified that the March 21 engagement took place virtually and the complainant raised the topic of compensation. She said that he was visibly considering options open to him, but she had informed him that she would not be privy to the preliminary report into the client-initiated complaint against him.

In conclusion, the Respondent restated that the complainant had failed in securing the necessary burden of proof in the case. There were dates which set out occurrences of discrimination or victimisation. He had not presented a suitable comparator under the Act.

The Complainant had failed to appreciate the commercial climate that he was operating in at Client A as there had been a decreased activity during the times where he sought more training and extra shifts.

The Respondent understood that the period of overlap between the outcome of the grievance on March 21 and the reception of complaints by Client A which led to the complainant’s suspension was of concern in the instant investigation but denied that the concerns raised on March 22,2024 constituted Victimisation.

The Respondent countered that the Complainant had distanced himself from his workplace through a number of unauthorised absences and statements of concern to a manager, which were investigated and upheld. The Complainant was invited back to work but chose not to and resigned.

I have been requested to make a decision on whether the Complainant was discriminated on Civil Status grounds in relation to receiving training and whether he was Victimised on that protected ground.?

In this, I am considering Section 6(2) (b), Section 8(1) and Section 74(2) of the Employment Equality Act, 1998 from where my jurisdiction is drawn.

The ground relied on by the complainant is that of Civil Status, married.

I have also been requested to consider a Preliminary argument on the scope of the time limits that can be safely associated with this case in accordance with Section 77 (5) and (6) of this Act.

The Complainant has provided his most recent date of discrimination as 22 March 2024.

In reaching my decisions, I have had regard for both Parties written submissions, oral evidence adduced and supplementary written detail on the request for a record of a job description and a redacted version of December 4 email from 2023.

Background and context of the Employment in this case.

I have taken this opportunity to digress slightly from the overall objective under Employment Equality to reflect a sub stratum in this case, that of the origin of the employment.

I have done this to seek to address the serious level of dissatisfaction expressed by the complainant in his work from Summer 2022 onwards. Neither the Respondent in this case or Client A were immune from that dissatisfaction. I accept that the complainant struggled during this period.

I have found it necessary to set out an overview of the nature of the employment that the complainant accepted from June 2021- July 2024 in the hope of both parties taking some time to reflect.

The Complainant in this case was an Agency worker for the duration of his employment. I have reviewed the Terms and Conditions of Employment dated 13 May 2022 but signed by both Parties in April 2022.

The Employer was listed as Flexsource Ltd and CPL Solutions ltd and had a CPL logo on the top right-hand corner.

The pay slips November 2021 to February 2022 were listed as employer CPL Solutions ltd.

I found a pay slip with Occipital ltd from 7 July 2023, but no clear documentation which underpinned that change. I accept that Occipital ltd is the Employer for the purposes of this case.

The permanent contract in this case 18 June 2023 listed the Employer as Occipital ltd.

I have not had the benefit of consideration of the Service Level Agreement which may have bound the Respondent with Client A. Neither did I have the benefit of reviewing any Collective Agreements which may have been in operation on Client A site.

The Directive 2008/104/ EC and Protection of Employees (Temporary Agency Work) Act 2012 form a legal back drop to the early days of employment in this case, which is up until June 2023.

Section 3 of the Act provides:

This Act applies to agency workers temporarily assigned by an employment agency to work for, and under the direction and supervision of a hirer.

In the second edition of Employment Law, Frances Meenan, 2023, Ms Meenan points to the purpose of the Directive as applying the principle of equal treatment to temporary agency workers as compared with workers directly recruited by the hirer.

I would have liked to have met a representative from Client A during this case. I say this as it became very clear to me as I listened to both parties in this case that the complex triangular relationship of being both a Temporary Agency Worker and a Permanent Agency Worker and its interface on a client site was not fully appreciated by both parties. Dacas V Brooke St Bureau [2004] ICR 1437.

I note the case of Muhammad Ismail in Occipital Ltd on appeal to the Labour Court, when the complainant sought parity with the direct hires. Occipital ltd v Ismail AWD 185, Both the Adjudicator and the Court found that the complainant did not have the standing of an Agency worker on which to progress a complaint to the WRC/ Court.

the uncontested evidence of the Respondent was that the Respondent, at the material time, operated a fixed price managed service contract to provide hygiene services under a service level agreement with the client company. The Court is familiar with the nature of such contracts and understands the contrast between the nature of such contracts and contracts for the provision of agency personnel.

I could not establish the circumstances of the complainants first hire i.e. was he locum or adjunct staff? The word Agency Worker has not been delineated in his documents of employment. I noted that the complainant was deemed to be protected by the Temporary Agency Worker Act 2012, but this protection was not explained.

I note that this was his first Agency employment, and his assignment and place of work was Client A. He did not have specific hours. This level of ambiguity went a long way in explaining for me at least, the high level of the complainant’s frustration from 2022 onwards at Client A site. He simply did not know where his rights, if any, stopped or started and as a result pitched for improvements in his conditions of employment more on moral and familial responsibility grounds than any declaration of legal standing.

 My observations conclude in Section 6 of the Act, in particular Section 6(2) The Swedish Derogation.

Basic working and employment conditions of agency workers.

6.— (1) Subject to any collective agreement for the time being standing approved under section 8, an agency worker shall, for the duration of his or her assignment with a hirer, be entitled to the same basic working and employment conditions as the basic working and employment conditions to which he or she would be entitled if he or she were employed by the hirer under a contract of employment to do work that is the same as, or similar to, the work that he or she is required to do during that assignment.

(2) Subsection (1) shall not, in so far only as it relates to pay, apply to an agency worker employed by an employment agency under a permanent contract of employment, provided that—

(a) before the agency worker enters into that contract of employment, the employment agency notifies the agency worker in writing that, if the agency worker enters into that contract of employment, subsection (1), in so far as it relates to pay, shall not apply to the agency worker, and

(b) in respect of the period between assignments and subject to—

(i) Part 3 of the Act of 2000, and

(ii) any other enactment or any collective agreement that makes provision in relation to terms and conditions of employment relating to pay,

the agency worker is paid by the employment agency an amount equal to not less than half of the pay to which he or she was entitled in respect of his or her most recent assignment.

Staffline Recruitment v Fitzgerald AWD 4/2018, where the Labour Court found that Mr Fitgerald was covered by the Swedish Derogation and prevented from securing parity with direct hires.

I have made these observations to provide a context and background to the parameters of this employment.

However, this is not a claim taken under the Agency Act 2012 but rather a claim for less favourable treatment than a named comparator on civil status grounds.  

Section 6(2) was not delineated on the permanent contract signed by the parties on 19 June 2023.

Section 25 on Employment Equality is of relevance in this case.

Section 26 “No contract with the Client “

“.. the employee has no contract with the client and has no authority to represent himself as or purport to be an agent or an employee of the client and shall not have any right or power whatsoever to bind the client to any obligation, unless authorised in writing by a duly authorised officer of the client …… “

Failure to adhere would result in disciplinary action up to and including dismissal.

I can appreciate the difficulty faced by the complainant as he spent all of every shift on the client A plant.

This concludes my efforts to appraise the Parties of the parameters on the context and background of this employment. There is no actionable complaint under the Agency Act. I merely seek to request that the parties reflect on the context and background which the Act provides in this case.

Preliminary Issue: Cognisable period of the claim.

The Respondent has submitted that I confine my investigation to the confines of 27 September 2023 to 26 March 2024, the date of claim. Mr Comerford argued for fairness and legal certainty in that regard. He argued that the complainant had submitted his complaint to the WRC on the conclusion of an internal informal grievance which he decided against escalation to a formal grievance and an Investigation under the company Disciplinary process on stated occurrences of concern by Client A.

The Complainant requested to be heard on the entire set of events pre and post the date of claim of 26 March 2024. He argued they were all linked.

The Law on this issue is provided in Section 77 of the Act

(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.

The date of claim here is March 26, 2024, and Mr Comerford is correct when he points to the 6 months preceding this date in the strictest sense.

However, Section 77 (6) (a) provides for scope for considering the complaint as a continuum.

County Cork VEC v Hurley EDA 24/2011.

(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 operates over a period, throughout the period,

(b) a deliberate omission by a person to do something occurs when the 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.]

County Louth VEC v Equality Tribunal [2009] IEHC 370, clarified that there was some scope for allowing an amendment to a claim if the general nature of the complaint remained the same.

This was a case that sought to consider occurrences of many years long standing prior to the framing of the complaint to the Tribunal.

The former Equality Authority addressed a request for expansion of a complaint on a prospective basis and denied the request. Cooke v UCD DEC E2010-004

The Labour Court in A School v A Worker EDA 2/2012, narrowed the scope of the investigation to occurrences prior to presentation of the complaint, but held that “probative “occurrences comprehended by the complaint could be admitted.

I am minded applying Section 77(6) (a) here. I am mindful that the complaint was received by the WRC just as a suspension had been affected and a disciplinary process progressed. However, the complainant has claimed that discriminatory acts pervaded throughout his employment from May 2022 to cessation. He has named the most recent occurrence as March 22, 2024.

I will recognise the prospective period from March 26, 2024, provided the occurrences relied on are probative and comprehended by the presiding complaint made.

I find for the Complainant on the Preliminary Issue.

The Complainant did not make an application for extension of time on reasonable cause in this case.

Substantive Case:

During the course of my investigation, on my review of the complaint form, and during the hearing, I requested that the complainant clarify the ground he had chosen on which to advance his complaint. I did this as he had made fleeting references to experiencing racism.

At all times, he clarified that this was a complaint of discrimination based on his civil status and that he was married.

Section 2 of the Act defines Civil Status as:

“being single, married, separated, divorced, widowed, in a civil partnership within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 or being a former civil partner in a civil partnership that has ended by death or been dissolved.”

In the Bolger Bruton and Kimber, Employment Equality Law, the authors set the scene of the impact of the changes carved by the change from marital to civil status.

As a result of the amendment to the Employment Equality Acts, any discrimination within those Acts (including its wide scope of areas such as access to employment, pensions, conditions of employment, equal pay) on the basis of civil status, being persons who enter into a civil partnership or who were formerly a civil partner, is prohibited within the Acts. This was the first time same-sex couples had been given any legal recognition within Irish law, which recognition was later extended to same-sex marriage. It provided a platform upon which same-sex marriage with equal rights was sought and successfully introduced following a referendum in 2015.

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The inclusion of civil status as a protected ground within the Acts meant that employers were required to offer the same treatment to civil partners as they would to other employees and now must offer the same treatment to any gay employee who enters into a same-sex marriage. For example, if an employer affords additional leave to employees for their marriage, they will equally have to provide this for employees entering into civil partnerships and now into same-sex marriages. 

of the changes carved by the change from marital to civil status.

In surmising that the impact of the Marriage Act 2015 , where marriage is  now open to all, the authors reflected back to a case taken on marital grounds 44 named Male and Female Complainant v Super Quinn DEC -E 2003-003 where the employer assumed married employees always shad dependent spouses and deducted pay in incorporating a sick pay provision of DSP which found that the actions of the employer :

“Place married employees in a more disadvantageous position than single employees in that (a) they have to ensure that they have not been over deducted and (b) if they have been over deducted to ensure that they receive a refund of the over deduction.”

Comparator

The Complainant has  identified his comparator as Mr SD who sought  training on the device on he worked during November 2024 .I had difficulty in getting the complainant to tell me when his comparator commenced work and he pointed to late November 2023 , yet the occurrence of training sought occurred prior to that . However, most important, he confirmed that Mr SD was married also.

He made some one other reference to a female co worker, Ms N who was trained but did not put this lady forward as his comparator and did not tie down a  dateline .

This puts the claim in a difficult position when a careful review of Section 6 of the Act takes place.

Discrimination for the purposes of this Act.

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

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

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

Section 6(2) follows.

As between any 2 persons, the discriminatory grounds are at (b) that they are of different civil status.

Section 85 A sets out the burden of proof in this case. I explained this burden at hearing.

The Labour Court has stated in Melbury Developments ltd and Valpeters that it falls squarely on the complainant to establish facts of “sufficient significance” on credible evidence from which I can infer that discrimination has occurred.

“Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn “

The Complainant must be able to link that he was treated less favourably than his stated comparator due to his civil status.

The Respondent has submitted that the complainant has not arrived at that juncture.

For my part, I have identified some ambiguity within the complainant’s employment in terms of his transition from temporary to permanent agency worker. I am not sure that he understood that transition and where the law may have placed him.

I fully accept that the complainant was very dedicated in his work and wished to make advances for him and his expanding family , however , my role in this case is to identify whether I can identify inferences of discrimination which are necessary to move the burden of proof to the respondent .

I have found that the Complainant accepted that he was happy at work until he was faced with a direct hire’s son in the Summer of May 2022.

He viewed this person’s accommodation on client A site as preferable to his accommodation. He made some statements to Client A staff but did not fall back on his employment at the Agency  to make complaints. I understand that he was troubled by his views of this worker who he viewed was protected by his Dad , a long term direct employee of Client A.

Mr Comerford’s question to the complainant during cross examination was astute when he asked the complainant why he hadn’t raised issues at the time of his transition to permanent in June 2023? to which the complainant said he had been advised not to.

The Complainant made a series of complaints about being denied training /overtime and has not accepted the Respondent reliance on a downturn in the business operations or that training was directed strategically at Level 2 Operators and not Level 1. He also submitted that he was deliberately by passed for over time on 30 occasions. The Agency Act does not convey an entitlement to receive overtime, which remains a discretionary system in the absence of a collective agreement or contractual certainty .

The Complainants most profound actions occurred when he departed his shifts  in protest. Once as a preventative measure to ensure client A did not repeat a request for training and other times as he was simply overwhelmed by his lack of success in improving his conditions of work.

It is clear from the papers that the complainant commenced looking for new work from 2022 onwards.

I understand his frustration at not making progress in his work and moving off the rumble wheel which he believed he had perfected. This is where performance appraisal may have assisted the parties as it would at a minimum capture the hopes and dreams for the year past and ahead.

However, on the evidence, I found that the complainant was most incensed at how he believed that his wife was treated at the Client A site and that it why he has relied on the civil status grounds, in my opinion.

The Complainant freely expressed that his wife’s arrival at the business was viewed as an enhancement for his home and work life.; When this didn’t occur, he was very disappointed.

I cannot put the matter further than that as the complainants wife did not give evidence in the case .

I was troubled that the complainant did not seem to observe the downturn trends in the client A site and attributed the loss of headcount to Engineers alone. Once more, I say a Client A witness may have assisted this narrative.

However, it is the  grievance of November 2023 which was interspersed by an extended period of sick leave, which  goes to the root of this case.

This was a deeply cathartic exercise by the complainant, where most of the document was prefaced by paragraphs which read “I didn’t mind when ……”

For me at least, this signalled the complainants acceptance of the past and should have focussed minds on the live issue which was  that he was confronted by a colleague on the client A site whose request for training left him feeling exposed and disconnected at the business. That alongside the long term employees sons arrival at the business, in 2022  were the antecedent events in this case .

He also reflected on his wife’s treatment at the business.

The grievance for me centred on his request to change location from Client A and I agree that this request was not really addressed by the respondent. I would have preferred if this document could have been condensed to live issues which required action. I appreciate that had the complainant formalised the complainant , his request for mobility may have surfaced .

The Complainant was gone from the business on sick leave from December 4 2023  until the first week of February 2024. He was offered EAP and participated in two supportive meetings.

1 stress risk assessment, Respondent completed.

2 Back to Work Meeting, Completed by Client A, Complainant referred to as an employee.

I would have liked to have met the author of the Back to Work Meeting as she captured in print at least that the complainant had taken time off to care for his wife before the delivery of his third child. He had also described an escalating alienation from Client A and its agents. The complainant provided one sick note from June 2024 which reflected stress. It was not reflected in the earlier medical certs.

The Complainant was indecisive on whether to formalise his grievance and was angry when the Respondent fed back following the tri partite meeting with Client A.

I found that the communication from the grievance was poorly formatted by the respondent. However, I found that Ms North had managed the grievance process fairly and it was the complainant’s decision not to formalise the grievance.

He did not anticipate that the Client A staff would raise issues regarding his attendance and interactions with the Respondent.

The Complainant demonstrated an unshakeable belief that he had done the right thing consistently during his employment. He carried an unresolved anger on how his potential was not properly captured at Client A and that his wife was poorly treated. These are the recurring facts in this case.

He confirmed that he had intended to leave the business from 2023 onwards and he followed through on that plan.

The Complainant participated in the disciplinary investigation following his suspension but failed to appreciate the outcome as he understood that he was met with a warning rather than a final written warning.

I was troubled by this as the complainant came to this case as a highly articulate Individual with a very high standard of English. I understood his position a little better when he told the hearing that he could never accept that he was guilty of anything on the Client A site.

He did not avail of the opportunity to seek feedback from CPL when his bid for direct employment on Client A site was unsuccessful in 2023 .

I have been looking for evidence of an inference of discrimination on civil status grounds. I have not been able to link the issues raised by the complainant to an inference of discrimination due to his married status.

I note that the Complainant engaged in Manual handling training in January 2024.

I can accept that the complainant felt under pressure in his family life at that time. I can also appreciate that he felt unappreciated and stuck at the Client A site, however the complainant has failed to identify a comparator of different civil status from where I can establish, he was treated less favourably because he was married. The Complainant has engaged in a sustained series of assertions and speculative comments which based on the case opened before me, I cannot elevate to a factual basis for me to declare an inference of discrimination.

In this , I agree with the Respondents reliance on the application of Magretts , that more is required in securing the burden of proof than mere participation of a protected ground .

I conclude that the complainant clearly  struggled within the challenges of a triangular employment, which as explained is a notoriously difficult employment to sustain long term in law and practice. He delayed to his detriment  before raising his concerns at Client A directly with his employer.

In my opinion, he would have benefitted from considering the offer made by the Respondent in offering him representation.

I found that the Respondent treated him unfairly when they did not actively explore the possibility of moving him from the location where he was clearly unhappy, but this did not amount to discrimination as distinguished in the Super Quinn case.

I have not established that the complainant has satisfied a prime facie case of discrimination on civil status grounds.

His case cannot succeed.

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 under any such repealed enactment, or

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

The Complainant has submitted that he was victimised due to his civil status. He described the adverse treatment as his being targeted by the Respondent following his grievance of November – March 2024 by means of his suspension and disciplinary investigation, which he contended were undeserved and punitive.

The test for Victimisation has been set out in a 2015 case at the Labour Court in Dept of Defence and Tom Barrett EDA 1516

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act), 2. The Complainant was subjected to adverse treatment by the Respondent, and 3. The adverse treatment was in reaction to the protected action having been taken by the Complainant. What constitutes a protected act is defined, at s.74(2) (Paragraphs (a) to (g) inclusive, as set out above).

 A successful claim requires the presence of all three components.

By the moment of the complainant’s suspension on March 22, 2024, the Complainant has signalled his intention to raise a complaint of discrimination, but this was loosely connected to race and not civil status.

He had told the Client A Manager on his return to work that he had contemplated a complaint to the WRC but had decided against it in December 2023.

He had made further loose references in his grievance to racism, not civil status.

I am satisfied that the Respondent was provided with a statement of genuine concerns regarding the complainant’s behaviour on Client A site such as to open an investigation in mid-March 2024.

I appreciate that the overlap on the conclusion of the internal grievance on March 22 and the opening of the investigation by the Respondent were stand alone incidents and not linked to the complainants stated intention of making a complaint to the WRC or indeed after he made the complaint to the WRC on March 26 , 2024 . These were serious operational concerns .

The Complainant was invited back to work, and he had the last word of refusal.

I have not established that the complainant was victimised due to his civil status.

I would make one point before I finish, I suggest that the Respondent and Client A should consider a joint venture of performance appraisal to underpin extended Agency employment in ease of both parties. The back to work template utilised by Client A in February 2024 amounted to an incisive document, albeit not really probative in the absence of a Client A witness at hearing, however, it was a useful foundation document which I commend to all parties in this triangular employment.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaints of Discrimination on Civil Status grounds and Victimisation.

1 I have not found that the complainant has established a prima facie case of Discrimination on civil status grounds.

2 I have not found that the complainant has established a prima facie case of Victimisation on civil status grounds.

Claim of Discrimination on Civil Status / Victimisation .