Complainant

Respondent

Parties

Terézia  Foott

Cork City Council

Representatives

C.W.Ashe & Co. Solicitors

 LGMA

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00062136-001

11/03/2024

The Complainant, a retained Firefighter, gave evidence on affirmation. It was her complaint that she was discriminated against on the grounds of gender in relation to securing a job, namely a permanent Firefighter position with the Respondent.

Mike Larkin, Director of Services; Ann O’Gorman, Recruitment Manager; and Gwen Callan, Senior Executive Officer appeared on behalf of the Respondent on the first occasion and sought an adjournment.

An adjournment was granted with a clear direction that the Complainant had until 8 April 2025 to file her submissions and identify her witnesses, with the Respondent given until 24 April 2025 to reply. It was made clear that no further extension would be permitted to ensure the hearing could progress fairly. One of the reasons for this adjournment was to allow the parties to adequately prepare their evidence given the technical nature of the subject matter of this complaint.

The Complainant’s submissions were received within the agreed timeframe.

The Respondent’s submissions were not received until 5 June 2025.

The Respondent was represented by Amanda Kane of the LGMA on the second day of the hearing, with witnesses Ann O’Gorman, Recruitment Manager, Mike Larkin, Director of Services, Gwen Callan Senior Executive Officer, and David Spillet, Chief Fire Officer, all of whom swore an affirmation.

At the outset of the second hearing date, the issue of the Respondent’s late submissions was addressed. It was submitted on behalf of the Respondent that its representative was not aware of the directions given at the hearing in March 2025. The Complainant objected to these late submissions. As it was directed in the March hearing that late submissions would not be accepted, the Respondent was invited on two occasions during the hearing to make any oral submissions but declined. Consequently, the Respondent’s submissions received on 5 June 2025 have not been considered for the purposes of this decision.

Further post-hearing submissions were requested from the parties on the Employment Appeals Tribunal decision in Advocate General for Scotland v Brown and The College of Policing Ltd [2024] EAT 189 during the hearing on 12 June 2025. Submissions were received from both parties and considered as part of this decision.

The Complainant gave evidence that she was a 43-year-old female who applied to become a Fire Officer with the Respondent.

She currently held a retained firefighter and also held the role of Driver Mechanic in her part-time position. As retained firefighter roles in Cork were part-time, she applied for the only employer of full-time firefighters in Cork, Cork City Council Fire Brigade.

It was her submission that the full-time firefighter position was highly sought-after, well-paid, and offered pension benefits and opportunities for advancement. She submitted much of the income earned in the role related to working during unsocial hours, including fires at night. The starting basic salary was approximately €642.63 per week, excluding additional likely earnings. It was her evidence based on her accountant’s advice that her based on her level of experience and a gross annual salary of between €40,000 - €45,000, her net loss of earnings would be between €7,000 - €10,000 per annum. 

As part of the process, the Complainant was required to undergo a fitness test which took place on 17 November 2023. It was the Complainant’s evidence that she passed every element of the test except the aerobic component.

She gave detailed evidence that the testing required her to complete 9.6 shuttles in the format of the Beep Test. However, it was her evidence that the Cork City Council Fire Brigade test did not include any normative element and did not consider age or gender. Instead, the same running target applied to all candidates regardless. It was her submission that she had to complete with a 20-year-old male, and she did “not know what chart of formula” was used by the Respondent.  The Complainant raised this query on the day of the test with Dr Cian O’Neill of MTU who in turn asked her to set out her question in an email.

When the Complainant’s performance was converted to a VO₂ Max score, she achieved a result of 37.4 ml/kg/minute, which was at the highest edge of the “Above Average” category according to the normative table for a 43-year-old female. It was the Complainant’s evidence that she undertook a VO₂ Max test in Dublin in the week after the Respondent’s Beep Test and achieved a result a score of 45.2 ml/kg/minute which would put her in the superior category for her age and gender.

 It was her further submission that the use of VO₂ Max score would have provided a highly accurate result and fair result for all applicants.  However, she did accept that the Respondent was unlikely to use the VO₂ Max because it is slow and expensive where a large group of individuals have to be tested.

It was her submission that she is required to carry out a medical every 3 years in her current position as a Fire Fighter. As part of it is the same cardio requirement but instead of the Beep Test, the Chester test on a box is used. It was her evidence that she has passed this test every 3 years.

She also submitted during a phone call with Ms O’ Gorman or Mr David Norberg she requested a retest on a gaseous exchange machine on a treadmill but was told this was not possible where other applicants would also have to be offered a retest in the interest of fairness.

There were several attempts to seek the answers to her queries from the HR department copying Mr Spillott and Mr Larkin between November and January 2024.

The Complainant wrote to the Respondent’s HR Department with a freedom of information request in March 2024 seeking the full Beep Test analysis, but she was advised the Respondent did not have that information on 17 October 2024.

In outlining the impact of the decision on the Complainant, she said she was working as a Fire Fighter at the time but was very excited about the opportunity for a permanent position with the Respondent. It was her submission that because of the discriminatory treatment the opportunity to work with the Respondent was taken away from her.  

The Complainant identified this as a discriminatory barrier to entry for full-time Fire Fighter roles in Cork.  

It was put to the Complainant that the fitness tests were very clearly set out in the Information Booklet and were not the Chester test in cross examination. The Respondent sought the Complainant’s qualifications in this area to which she responded that she was an Ortho-Sports Therapist and a Personal Trainer.

The Complainant accepted that she had applied for other fire services. It was the Complainant’s evidence that she had passed the physical test which had been changed from a Beep Test to the Chester Step Test. She added that the VO₂ score was changed to a “good” cardiovascular health.

The Complainant accepted that she failed the job suitability element of the test for Limerick City and Council Fire Service.

Upon inquiry, the Complainant was asked about the cardio tests used by other fire services. It was her evidence that Dublin Fire Service had used the Chest test instead of the Beep Test as had the retained Fire Service. It was her evidence that only the Respondent continues to use the Beep Test. It was her evidence that the Respondent requires a very specific VO₂ score of 45.2 but does not use an accurate test for its applicants.

The Complainant added that the Beep Test is not accurate but accepted it was accurate if the normative chart is applied and relied upon a normative chart in evidence. She submitted that narrative chart was not contained in the procedures for carrying out the test.  The Complainant stated she asked the Respondent for this chart, but it was unable to give it to her.

Advocate General for Scotland v Brown [2024] EAT 189

The Complainant submitted that the Respondent had failed to establish any legitimate aim capable of justifying the discriminatory impact of the fitness standard applied. It was argued that the Respondent appeared to rely on vague assertions about employing staff “best able to do the job,” without articulating any concrete or lawful objective. The Complainant referred to the Respondent’s own published strategic goals and emphasised that, like all public bodies, the Respondent was bound by equality legislation and could not rely on organisational tradition or convenience. It was further submitted that maintaining a homogeneous workforce or minimising costs could not constitute legitimate aims, particularly given that public funds were used and taxpayers had a legitimate interest in eliminating indirect discrimination.

The Complainant contended that the means chosen by the Respondent were neither appropriate nor necessary. The ‘Beep Test’ was described as a “cheap and dirty” method of testing aerobic capacity which, according to the in decision in Advocate General for Scotland v Brown [2024] EAT 189, risked producing false‑negative results and was inherently inaccurate. Despite launching a recruitment campaign in 2023, the Respondent continued to rely on the same test it had used for decades, without modernisation and without addressing equality concerns. Candidates who failed the test remained indefinitely “on the panel,” with no clarity on when future tests might be held, leading the Complainant to argue that the system was arbitrary, outdated, and inequitable.

The Complainant also submitted that less discriminatory means of achieving the Respondent’s stated aims were readily available. Alternatives included adjusting standards by age or gender in accordance with normative physical fitness data, employing a variety of testing methods, offering the opportunity for a re‑test, or utilising more accurate laboratory VO₂ max testing, which would not have been excessively costly.

The Complainant argued that the rationale for the Respondent’s policy was uncertain and that its practical effect had been to reduce the number of women progressing to full‑time roles. She maintained that the persistently low female intake was linked to the Respondent’s inflexible testing method and submitted that the Respondent had not shown why adopting more equitable assessment methods, or addressing equipment designed for a male physique, would have been disproportionate.

The Complainant asserted that she was entitled to compensation for loss of income, pension entitlements, and other financial losses arising from the Respondent’s failures. She further maintained that she was owed an apology in recognition of the harm caused.

Chief Fire Officer, Mr. David Spillet’s Evidence

It was the evidence of the Chief Fire Officer, Mr. David Spillet, that he has served with Cork City Council for seventeen years, having previously worked as an Assistant Officer since 2007.

It was his evidence that recruitment for firefighters includes a physical fitness assessment comprising height standards, aerobic capacity tests, and the multi-stage beep test. He stated that the fitness testing regime originated in the late 1970s and early 1980s and was adopted as best practice across UK fire services during that period. Cork City Council consulted specialists when implementing these standards. The VO₂ max requirement is 42.5 ml/kg/min, which equates to level 9.6 on the beep test.

It was Mr. Spillet’s evidence that there is no separate standard for males and females; the same fitness requirements apply to all candidates to ensure they are capable, fit, and healthy for operational duties. He noted that occupational health is involved in overseeing these standards and that efforts have been made to maintain consistency across twenty-seven fire authorities nationally.

For retained firefighters, the same VO₂ max standard applies, though the testing method may vary, using the beep test, Chester step test, or Chester treadmill test. Mr. Spillet stated that Cork City Council regularly reviews fitness testing practices, with the most recent review in 2012. He explained that the beep test, in use for about forty years, remains the benchmark for assessing cardiovascular fitness, supported by firefighter handbook guidance emphasizing consistent fitness standards. He noted that occupational health systems are under review and may align with a national standard following recommendations from an unfinished governance report.

He further stated that the service has taken steps to increase diversity through research and targeted recruitment campaigns, with leadership actively involved. Two retained firefighters have been promoted, and all candidates, regardless of background, must meet the same fitness requirements. Of approximately 185 personnel, only eight or nine hold non-operational roles; all operational staff must meet prescribed fitness standards.

Under cross-examination, Mr. Spillet stated that the fitness test is designed to assess aerobic fitness as part of overall physical requirements for firefighters. He acknowledged he is not a fitness expert but confirmed the test ensures operational capability. He explained that interviews are separate from the fitness test and that the beep test is used because it is practical for group assessments, unlike alternatives such as the Chester step test, which suit individuals.

He said the beep test provides consistency, is widely recognized, and has been in use for decades because it reflects the physical demands of the role. All firefighters, regardless of age or gender, must meet the same standard. When asked why the test has not changed, he maintained it remains appropriate and that reviews against other authorities, including Dublin, support its continued use. He rejected claims of discrimination, stating its purpose is to ensure fitness for operational effectiveness. When challenged on whether the test should have been changed or adapted over time, Mr. Spillet maintained that the beep test continues to be appropriate and that there has been no compelling reason to replace it. He confirmed that the fire service regularly reviews practices and benchmarks against other authorities, including Dublin, but has found the beep test to remain the most suitable method. He rejected the suggestion that the test is discriminatory, reiterating that its purpose is to ensure a good level of fitness necessary for operational effectiveness.

Evidence of Gwen Callan

Ms. Gwen Callan, Senior Executive Officer in Industrial Relations with the Respondent, gave evidence that the Respondent did not, as a matter of policy, offer retests to candidates who failed the MSFT. She stated that this approach was grounded in considerations of fairness and consistency, ensuring that all applicants were assessed under the same conditions without the benefit of repeated attempts. Ms. Callan confirmed that discussions had taken place regarding the Chester Step Test as a possible alternative, but her evidence was that the offer ultimately made to the Complainant was declined.

Ms. Callan accepted in cross‑examination that she did not recall certain exchanges or details now raised by the Complainant, including specific conversations about alternative assessments, and acknowledged that no formal written policy had been relied upon when the Complainant’s case was initially considered.

Ms. Callan further indicated that the Respondent’s actions were informed by operational practice rather than documented procedures or legal guidance. She explained that the Respondent considered its approach to be procedurally fair and did not identify any internal mechanism for offering retests or alternative testing pathways beyond the single instance offered to the Complainant. When questioned about the implications of the Chester alternative and the rationale for its initial absence from the process, she stated that the Respondent had made an open offer in good faith but maintained that the Complainant had chosen not to pursue it. Her evidence suggested that the Respondent viewed the matter as resolved through that offer and that any further requests for clarification, policy review, or formal justification had not been developed at the time.

Advocate General for Scotland v Brown [2024] EAT 189

The Respondent submitted that while Advocate General for Scotland v Brown [2024] EAT 189 addressed issues concerning fitness testing and potential indirect discrimination, the factual circumstances were materially different. The complainant in Brown was a police officer, the present case concerned entry to the fire service, a profession requiring significantly higher levels of aerobic capacity, physical strength, and operational endurance. The Respondent maintained that the multistage fitness test (MSFT) used in recruitment was a necessary and accurate measure of the physical attributes required to safely undertake the duties of a firefighter.

The Respondent further submitted that Article 4(1) of the Equal Treatment Directive permitted differences in treatment where a characteristic related to a protected ground constituted a genuine and determining occupational requirement. Relying on the ECJ Case C-229/08 Wolf v Stadt Frankfurt am Main, exceptionally high physical capacity was inherent to firefighting, and therefore the Respondent contended that the fitness standards represented a legitimate and proportionate means of ensuring operational capacity, public safety, and compliance with health and safety obligations. Because all firefighters, regardless of gender, were required to perform identical duties, equal fitness standards were necessary to avoid compromising safety or operational effectiveness.

Regarding alternative testing, the Respondent noted that although the MSFT was generally regarded as a superior measure of aerobic fitness when compared with the submaximal Chester Step Test, the Respondent nonetheless offered the Complainant the opportunity to undertake the Chester test. This was done specifically to address the issues identified in Brown concerning the need to consider alternative testing methodologies. The Complainant declined the offer, and the Respondent submitted that this refusal undermined her argument contention that an alternative testing method was necessary to avoid disadvantage.

If, despite these matters, a finding of indirect discrimination was to be made, the Respondent submitted that any remedy must take into account the absence of discriminatory intent and the steps taken to provide the Complainant with an alternative assessment route. The Respondent maintained that its fitness standards corresponded to a real and pressing operational need, were applied uniformly, and were unrelated to discrimination on the grounds of gender or age. In light of the Complainant’s refusal to avail of the alternative testing option provided, the Respondent submitted that this should be carefully considered before any award of compensation.

The Employment Equality Acts 1988-2015 (the “Acts”) and in particular Section 6 (1) defines the discrimination: -

“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,

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

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

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

Section 6 (2) continues:

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

(a)    that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

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

Section 8 (1) of the Act relates to discrimination by employers and prospective employees: -

“8.—(1) In relation to—

(a) access to employment,….

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

Section 8 (5) refers to prospective employees: -

“(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or

(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.

Indirect discrimination on the gender ground.

22.— 1) (a) Indirect discrimination occurs where an apparently neutral provision would put persons of a particular gender (being As or Bs) at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.

 (b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to (including A or B), unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.  It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her.  If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent.

In Cork City Council v McCarthy EDA0821, the Labour Court stated as follows about the burden of proof:

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

It was the Complainant’s evidence that she was discriminated against on the grounds of her gender and age while competing against both male and female and male candidates of different ages.

The Complainant’s age and gender were not in dispute. It was also accepted that she was a prospective employee seeking access to employment as a Fire Fighter with the Respondent. The Complainant relied on a male in his twenties as a comparator, albeit hypothetical, and this was not challenged.

She raised her concerns on the day of the physical test and continued to raise them with the Respondent over the following months.

For these reasons, the Complainant has discharged the burden of proof and established a prima facie case of discrimination.

The test at issue, the beep test, involves running back and forth along a set distance in time with beeping sounds. The candidate must reach the end of the track before each beep. After every level, the beeps become closer together, requiring the candidate to run faster.

It was clear that the Complainant had in‑depth knowledge of physical fitness testing methods. While the Chief Fire Officer’s evidence was of value, he acknowledged that he was neither a fitness expert nor present for the beep test in November 2023, which was overseen instead by Occupational Health. It is noted that the Respondent did not rely on any evidence from Occupational Health.

Despite this, there was no dispute that a fitness test is required by the Respondent as a method of selecting candidates, given the physical nature and demands of a Fire Fighter’s duties. This is accepted as a proportionate means of achieving a legitimate aim, following the decision in Advocate General for Scotland v Brown.

It is further accepted that due to the large number of candidates, the beep test is practical for group assessments. The Complainant equally accepted that it would be time‑consuming and expensive to offer each candidate a VO₂ Max test, despite its high accuracy.

However, distinguishing this complaint from the EAT’s decision in Advocate General for Scotland v Brown, the absence of a normative element in the beep test, one that considers both age and gender, is significant. It is not accepted that a “one‑size‑fits‑all” beep test is appropriate.

Both parties agreed that alternative methods of testing are available and used in other Fire Services, such as:

o   the Chester treadmill test, a timed and graded treadmill test with increased gradient at intervals (the test at issue in Advocate General for Scotland v Brown), and

o   the Chester step test, which requires stepping on and off a box at a guided rate that increases every two minutes.

The Chief Fire Officer further acknowledged that testing methods vary for retained Fire Fighters within Cork City, albeit with the same VO₂ Max standard applying. However, it is accepted that regardless of which test is applied, without the application of a normative table that considers age and gender in determining the final score, the tests are open to challenge.

I find this to be indirectly discriminatory on the grounds of both age and gender. This is particularly relevant where the Respondent openly acknowledged in its evidence that there was no separate standard for males and females, and that the same fitness requirements applied to all candidates.

For these reasons, I find that the beep test applied by the Respondent as part of its recruitment process for Fire Fighters in November 2023 was both directly discriminatory towards the Complainant and indirectly discriminatory against women, while giving younger candidates a distinct advantage. I find that, for this reason, the Complainant was treated less favourably by the Respondent as a prospective employee seeking access to employment and discriminated against on the grounds of both age and gender.

For the reasons set out above I find the Complainant was discriminated against by the Respondent.

Section 82 of the Acts sets out redress which may be ordered.

82.—(1) Subject to this section, the types of redress for which a decision of the Director General of the Workplace Relations Commission under section 79 may provide are such one or more of the following as may be appropriate in the circumstances of the particular case:

(a) an order for compensation in the form of arrears of remuneration (attributable to a failure to provide equal remuneration) in respect of so much of the period of employment as begins not more than 3 years before the date of the referral under section 77(1) which led to the decision;

(b) an order for equal remuneration from the date referred to in paragraph (a);

(c) an order for compensation for the effects of acts of discrimination or victimisation which occurred not earlier than 6 years before the date of the referral of the case under section 77;

(d) an order for equal treatment in whatever respect is relevant to the case;

(e) an order that a person or persons specified in the order take a course of action which is so specified;

(f) an order for re-instatement or re-engagement, with or without an order for compensation.

(4) The maximum amount which may be ordered by the Director General of the Workplace Relations Commission by way of compensation under subsection (1)(c) or (1)(f) shall be—

(a) in any case where the complainant was in receipt of remuneration at the date of the reference of the case, or if it was earlier, the date of dismissal, an amount equal to the greatest of—

(i) 104 times the amount of that remuneration, determined on a weekly basis,

(ii) 104 times the amount, determined on a weekly basis, which the complainant would have received at that date but for the act of discrimination or victimisation concerned, or

(iii) €40,000,

or

(b)    in any other case, €13,000.”

The Complainant was not in receipt of remuneration at the date of referral of the case to the Workplace Relations Commission. Therefore, the maximum award available to her as a prospective employee is €13,000, in accordance with Section 82(4)(iii)(b).

The Complainant has been found to have been both directly and indirectly discriminated against on the grounds of gender and age. Accordingly, each ground may attract a separate award.

However, compensation is not the only form of redress available under Section 82. In considering what, if any, additional orders would be appropriate, it is noted that the Respondent made an undisputed offer to allow the Complainant to retake the fitness test during another recruitment day, albeit with another Fire Service. This offer was refused by the Complainant. While it may not have been the ideal solution, particularly as the Respondent’s own recruitment campaign had concluded by that time, it nonetheless constituted a viable option. In light of the Complainant’s refusal, and given the uncertainty around when or whether the Respondent will run another competition, compensation is the most appropriate form of redress in this case. It should also be noted that there was, and continues to be, nothing preventing the Complainant from applying for future competitions with the Respondent.

Having carefully considered the facts of this case, I order the Respondent to pay the Complainant €4,000 in compensation for discrimination on the ground of age, and a further €4,000 in compensation for discrimination on the ground of gender.