Complainant

Respondent

Parties

Tyrone  Guiamo

Microsoft Ireland Operations Limited

Representatives

Harriet Burgess BL instructed by Donal Cumiskey Cumiskey Solicitors

MP Guinness BL instructed by Lewis Silkin Ireland LLP

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-00068291-001

20/12/2024

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

CA-00068291-002

20/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00068291-003

20/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00068291-004

20/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00068291-005

20/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00068291-006

20/12/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00068291-007

20/12/2024

The Complainant commenced working with the Respondent on 1 October 2020 in their sales team and remains in their employment. He stated that he has been subjected to discriminatory treatment during his employment because of his race and has also not been paid the same as other colleagues of a different race despite doing like work. He also alleged that he worked excessive hours and did not receive his statutory rest breaks. 

The Complainant commenced working with the Respondent on 1 October 2020. The Complainant is a black man who is a national of the Netherlands and ethnically describes himself as black mixed race. The Complainant’s salary is a base salary of €90,100 with a mobility fee of €12,000.

C was the direct manager of the Complainant and L was his direct colleague initially. The Complainant worked as an Apps & Infrastructure Specialist and L worked as a Data & AI Specialist. The Complainant sold Microsoft’s cloud services to customers and explained cloud services to both technical and business teams of customers. This was done in collaboration with a “Digital Hunter”, who was J during 2021. The team the Complainant worked on also comprised Account Managers. The Complainant’s direct team also worked with other teams such as Customer Success Account Managers and Cloud Solution Architects.

On 1 July 2021, C was promoted to Director and, around one month later, L was promoted to become the Complainant’s manager. The Complainant initially was the only person working with L, as J wished to work with a different department at the time.

On 1 February 2022, the Complainant commenced working in Ireland as the pandemic ended. On 29 September 2022, two other employees of the Respondent (B and O), as well as the Complainant, attempted to give feedback to C about L as a manager – the goal being to improve L’s employee engagement score for the whole team. L raised with the Complainant directly on 6 October 2022 that she had heard that the Complainant had “given feedback” to C about her. L did not treat B or O in a like manner.

The Complainant was concerned as L appeared furious when discussing this with him on a virtual call. The Complainant wrote to C immediately to de-escalate the situation. On 10 October 2022, the Complainant attended a meeting with C and L.

Two days later, on 12 October 2022, C called the Complainant to a meeting to share that he had to “call out” the Complainant for “being disrespectful” to L. C advised the Complainant to have a further meeting with L, which the Complainant did. He explained to her that there were no bad intentions on his part and that he would like things to improve and for her to succeed in her managerial role.

The Complainant was taken aback by the interaction with C as the conversation between himself, L and C was about improving the team. The Complainant was unsure why he was being singled out by C but did his best to rectify matters.

On 1 November 2022, the Complainant had a “walk and talk” meeting with L. This was scheduled at 15:00. During the walk outside, it started to rain, and the Complainant suggested that they continue the meeting inside. Inside, L raised that the Complainant was not making “enough impact”. The Complainant explained all the things he was doing to make an impact and that he also spoke to other peers to learn from them. The Complainant asked L to tell him what he needed to do to make more impact. At the end of the conversation, the Complainant emphasised that he really wanted things to improve between them, that his intentions were coming from a good place, and that he was in no way attempting to be disrespectful. L responded by saying, “let’s stick to the basics”, and then walked out the door. The Complainant was shocked by L’s lack of professionalism and rudeness.

L scheduled a meeting for 8 November 2022, wherein she invited the Complainant as well as a Digital Solution Architect, M. The Complainant was only notified about him attending (remotely) one minute before the call. L repeated that she did not think the Complainant was “making an impact”. Without warning or discussing the matter with the Complainant, L emailed C and the Complainant after the meeting as follows: “I am including C now and asking his help in solving the issues we have. It has taken too much energy and we need help to solve it.”

On 11 November 2022, C emailed the Complainant and L as follows: “Hi L and Tyrone. Thank you for reaching out. I’m meeting with the HR Consulting team next week and will confirm next steps, which would probably be a mediated or moderated discussion with yourselves.”

The Complainant learned that L had accused him of “screaming” at her during the walk and talk meeting on 1 November 2022. The Complainant at no stage had raised his voice during this meeting. The Complainant was extremely distressed to hear that he was being slandered in this manner and that he was being characterised in a negative stereotype as aggressive by L. Further emails were sent by L which set out a false narrative about the Complainant refusing to do work and lacking respect.

The Complainant greatly suffered during this time as his interactions with L became progressively worse. L would regularly accuse the Complainant of not performing at work. She would also email the Complainant when she was standing right beside him. She would leave rooms that the Complainant was in, in the middle of discussions with him.

For some months, the Complainant was under medical observation and had elevated blood pressure due to the treatment he was experiencing at work. As his blood pressure was high for some time, the Complainant was prescribed blood pressure medication from December 2022.

On 19 January 2023, the Complainant’s doctor recommended that he wear a 24-hour blood pressure monitor to get better insights and to adjust medication accordingly. The Complainant had to attend for medical attention on 24 January 2023 as well as 26 January 2023. Due to his elevated blood pressure, the Complainant’s doctor directed that he immediately take rest and also start different medication.

In or around 11 April 2023, the Complainant met with Occupational Health as well as HR. During one of the meetings with HR during the Complainant’s sick leave, he also briefly shared a possible structured approach to use with L when he would return to work. This presentation was based on the book The Culture Map, which is about understanding and navigating cultural differences in the workplace. The Complainant suggested this of his own volition to see if he could rectify matters. His requests for cultural sensitivity were not heeded by the Respondent.

On 8 May 2023, L met with the Complainant virtually and again stated that he was not making “an impact” in certain areas, specifically related to customers and an initiative called Pilot for ACA. These comments were made despite the Respondent being aware of the Complainant having been on stress-related sick leave. The Complainant was also referred to by L in this meeting in a derogatory manner as her “assistant”. The Complainant raised this with C and HR. The Complainant knew that his colleague B ran a project called “ACAs with PRACR”, which was not successful financially for the company, yet L never raised with B that there were any issues with him not “making an impact” at work.

The Complainant raised a grievance on 12 May 2023, which the Respondent’s investigation team of JH and a line manager sought to characterise as a dignity at work procedure. The Complainant had consistently raised throughout his complaints that he was being treated differently to other colleagues.

On 25 May 2023, L held a meeting where every team member present was asked to share their learnings and their impact projects during the fiscal year. The Complainant was ignored at this meeting and was the only person not asked to share any information. The Complainant was fully aware at this stage that he was being treated differently to other colleagues, as his direct colleague in the Netherlands, B, had been asked to share his impact project called “ACAs with PRACR”. With his project, he delivered 2 ACAs (Azure Customer Adds). The Complainant’s project “Pilot for ACA” delivered 5 ACAs (Azure Customer Adds) in Enterprise.

On the same day, L submitted her feedback on the Complainant to the Respondent, and he was rated “lower impact than expected” – something which the Complainant had never been rated before. The Complainant was also described by L as “uncommitted”. The Complainant stated that his internal performance score was above 100%, and this characterisation was unjustified.

The Complainant’s manager changed from L to N on 3 July 2023. N pressurised the Complainant after he returned from sick leave and micro-managed him. The Complainant received a Dignity at Work report on 28 November 2023, seven and a half months after raising a grievance, and appealed same on 11 December 2023. The Complainant sought an update on his appeal on 12 February 2024, to which no response was received.

Further to the above, a workplace incident involving a racist joke posted by a colleague, P, in a team chat on Microsoft Teams took place on 1 March 2024. The Complainant responded immediately to the inappropriate message, but his manager, N, did not acknowledge the situation or address it in the team chat at all. Although the Complainant’s team had weekly meetings, the manager only brought up the issue during a meeting on 20 March 2024, which was two and a half weeks later, without taking a clear stand, instead suggesting the team should be open to “both perspectives”.

Privately, the manager thanked the Complainant for responding to the joke and said he would talk to P, which resulted in P and the Complainant having a one-on-one call on 4 March 2024. In that conversation, P defended the joke and said they would “agree to disagree.”

Despite the manager's promise to the Complainant to address the issue with the team, the delay and lack of a clear stance made the Complainant feel unsupported, unwelcome, and further alienated. There was also no expressed support from other colleagues, which the Complainant believes is indicative of the culture of the Respondent and the inability of colleagues to address racism in the workplace.

No formal record was ever kept of any of these interactions. In respect of his overall grievance, the Complainant sought updates from the investigators of his appeal on multiple occasions between March and July 2024.

On 18 July 2024, the Complainant finally received the report with the appeal outcome during a meeting with A. It was explained to the Complainant that the Respondent would make no changes to the outcome of the Dignity at Work investigation received in November 2023. The report did not refer to key materials, including interviews with B and O. The Complainant suffered a panic attack on 20 July 2024. He was unable to work between 29 July and 27 August 2024. On 28 August 2024, on returning to work, the Complainant was asked by his manager N when he would be looking for a new job. The Complainant was shocked. N set unrealistic targets, which he sought to respond to in an email.

The Complainant was assessed by Occupational Health as being unfit for work on 10 September 2024. The Complainant’s health has greatly suffered whilst in employment with the Respondent. The Complainant submitted medical reports to confirm his deterioration in health. The Complainant was also denied leave to work remotely when his mother was hospitalised in Spain in March 2024. The Complainant’s own manager, N, was allowed to work remotely from the Netherlands in August / September 2024 when his father was sick.

The Complainant commenced working for the Respondent on 1 October 2020 as an Azure Apps and Infra Specialist. He is a Dutch national. L, his manager, is a Chinese-born, naturalised Dutch national. Prior to her promotion, she was a colleague of the Complainant in the Dutch POD, providing services to the Dutch market. Initially, the Complainant reported directly to C.

At the beginning of the 2022 financial year, C was promoted to Director of Digital Specialists, and L was promoted to Sales Manager for various pods, including the Dutch pod of which the Complainant was a member. At that time, both the Complainant and L maintained a good relationship, both as colleagues and as manager and subordinate.

In the 2022 financial year, the Complainant fell short of his target by two Azure Customer Adds (ACAs), and L was required to highlight these performance concerns. The Complainant provided feedback directly to L regarding her managerial style and also provided feedback to C. L took steps to realign the Complainant’s priorities for the 2023 financial year in order to ensure that he met his targets. During a Q1 connect conversation on 5 October 2022, L clarified the importance of meeting these targets. Despite these efforts, the Complainant continued to struggle to meet his performance objectives.

On 11 May 2023, the Complainant lodged a formal grievance regarding his manager, L. The grievance stated that it was being submitted for the following reasons:

• Hostile work environment

• Retaliation

• Unfair treatment

• Policy violations

The substance of the complaint alleged that L was bullying the Complainant. There was no reference to race or discrimination in the 26-page document. The behaviours alleged, which were not upheld, were characterised as bullying behaviours. The Complainant alleged that he had been treated “differently” and “unfairly” compared to B. At no point did he allege that the alleged behaviours were linked to his race.

A full investigation under the Respondent’s Dignity at Work Policy was carried out, as the complaint was deemed to concern alleged bullying by L. Two investigators were appointed, including JH, and several people were interviewed as part of the process, including:

• L

• The Complainant

• C

• B

• O

The investigation took some time to conclude and ultimately did so on 28 November 2023, when a detailed investigation report was issued. The investigation found that L had engaged in coaching with the Complainant to support him in improving his performance. In doing so, L provided clear and detailed instructions identifying gaps in performance and measures that could be employed by the Complainant to address those gaps. The investigation determined that a manager raising and addressing performance concerns, when done in a professional and courteous manner, did not constitute bullying.

The investigation further found that L was open to receiving feedback, notwithstanding the Complainant’s assertion that she was not meeting managerial expectations. It was also noted that during the FY23 manager feedback session, the broader management team had indicated that the Complainant’s impact was below expectations. This suggested that the feedback was not solely from L. The investigators concluded that the Complainant was not bullied by L.

The Complainant appealed the outcome of the investigation report on 11 December 2023. In his view, the report focused only on bullying, whereas he had also raised concerns about a hostile working environment, unfair treatment, and policy violations. There was no reference to the Complainant’s race or any allegation of race discrimination in either the appeal document or the original 26-page grievance. An appeal hearing was held on 12 January 2024.

Separately, the Respondent addressed the Complainant’s allegation that he had been denied permission to work remotely while his mother was hospitalised in March 2024. The Respondent operates a Global Mobility/Payroll Tax Compliance Policy, which does not permit employees to work outside the country. It also operates a Family Caregiver Policy, which provides up to four weeks of paid time off to support family members suffering from serious illness.

A meeting was held with the Complainant on 25 March 2024 to discuss these policies and other available options. The Respondent accepted that N had been permitted to work from the Netherlands for a few days in 2025, prior to his father’s passing. This was a judgment call made by management in circumstances where N’s father passed away a few days later.

In relation to the alleged racist joke in a Microsoft Teams chat on 1 March 2024, P apologised to the Complainant five minutes after the Complainant raised the issue with him. The Complainant’s manager subsequently spoke with both the Complainant and P, which led to a one-on-one call between P and the Complainant on 4 March 2024 to discuss the matter further. Furthermore, the Complainant’s manager addressed the issue at a team meeting on 20 March 2024, reiterating that racism is not tolerated within the Respondent.

The Respondent took into account that P had apologised within five minutes and that the Complainant had not submitted a formal complaint. It was therefore deemed appropriate to deal with the matter informally. Following the team meeting on 20 March 2024, the Complainant did not raise any further complaints regarding this incident.

In relation to the equal pay claim, the Respondent stated that in the 2022 financial year, the Complainant fell short of his target by two Azure Customer Adds (ACAs), and L was required to highlight these performance concerns. L took steps to realign the Complainant’s priorities for the 2023 financial year in order to help him meet his targets, but despite these efforts, the Complainant continued to struggle. Any reduction in the Complainant’s 2023 bonus was entirely due to his underperformance.

Both comparators, B and O, are at a lower level than the Complainant and are therefore not appropriate comparators. The Complainant is at level L61, while both comparators are L60. In fact, until September 2024, O was at level L59. The roles performed by both comparators differ from that of the Complainant. B’s role focused on identifying and qualifying opportunities with customers, which would then be passed to the Complainant. O supported the Belgian market, while the Complainant supported the Netherlands. Both comparators earn significantly less than the Complainant.

The Complainant’s compensation ratio is 1.15, compared to O’s ratio of 0.97 and B’s ratio of 0.93. Accordingly, the different merit awards are not comparable. The Complainant is at the upper end of the compensation scale for his level, with a compensation ratio of 1.15. A compensation ratio of 1 represents the midpoint, and most employees fall between 0.9 and 1.1 on that scale. As such, the higher an employee’s compensation ratio, the less scope there is for merit increases. Because O’s compensation ratio is significantly lower, she was eligible for a higher merit increase.

CA-00068291-001:

Section 6 of the Act states as follows:

(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 insubsection (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 ofparagraph (a), constitute discrimination.

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

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

Section 77(5)(a) of the Acts provides that a claim for redress in respect of discrimination may not be referred after the end of the period of 6 months from the date of occurrence of the discrimination to which the case relates or, as the case may be, the date of its most recent occurrence. The Complainant referred the complaint under the Acts to the WRC on 20 December 2024, and therefore the cognisable period in relation to the complaint is 21 June 2024 to 20 December 2024. The Complainant seeks to rely on a continuum of discrimination.

Thus, if the Complainant in this case can establish that an act of discrimination on the ground of race occurred between 21 June 2024 to 20 December 2024, I may consider allegations that arose prior to that period and to consider if there was a continuum of discriminatory acts as provided for under s 77(5)(a) of the Acts.

This is in line with the Labour Court decision in the case of Ann Hurley -v- Co Cork VEC, EDA 1124 where the Court stated that,

“Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant…Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

Regarding the burden of proof in relation to these allegations, Section 85A provides that,

“(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.

In the matter of Southern Health Board -v- Mitchell [2001] E.L.R. 201 the Labour Court set out the now well-established test in determining whether the probative burden shifts by application of this subsection. In particular, the 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 these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment”.

In the matter of Melbury Developments Ltd v Valpeters EDA 09/17, the Labour Court commented that,

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Complainant in this matter gave evidence of the following allegations of discrimination in the cognisable period:

(i)                  In relation to the first allegation of discrimination within the cognisable period, the Complainant stated in his evidence that his line manager, Mr. Niels Lohuis, was granted special leave to work outside the country in August 2024 when his father was ill. This, he contended, contrasted with the treatment he received when he sought permission to work remotely from Spain in April 2024 while his mother was ill.

While the Complainant claimed that the discriminatory act occurred in August 2024, when Mr. Lohuis was permitted to work abroad, I find that any alleged act of discrimination would have occurred in April 2024, when the Complainant was refused permission to work outside Ireland. Accordingly, such an act would fall outside the cognisable period.

(ii)                 The Complainant further stated that, following the outcome of the appeal process relating to his grievance, Mr. Lohuis, asked him on 28 August 2024 whether he would be looking for a new job. In assessing whether this constituted discrimination, I note that the Complainant did not identify any comparator — that is, any other employee of a different race who had not been asked a similar question following the conclusion of an internal grievance process.

I also noted the evidence of Mr. Lohuis, who stated that his question was framed around what the Complainant was seeking and that he wished to explore, in an open manner, whether the Complainant might be considering leaving the organisation. Mr. Lohuis explained that his intention was to determine whether there was scope to discuss a potential exit package to facilitate such a decision. He further stated that this approach was consistent with the Respondent’s open and transparent culture, which applied to all members of his team.

I also noted that it was clear from the Appeal Outcome letter which was provided to the Complainant on 18 July 2024 that he had informed the Appeal Officers during the course of the appeal process that he had applied for employment elsewhere.

Having considered all of the foregoing, I do not find that the conversation between Mr. Lohuis and the Complainant on 28 August 2024, or any of the questions posed during that exchange, constituted discrimination.

(iii)               The Complainant also stated that he received no flowers from the Respondent when he was off work in the period prior to August 2024 or when he was off again from September 2024. He stated that this was unlike another colleague of a different race who was also off work but who had received flowers. I do not find that this colleague was an appropriate comparator because the Complainant failed to provide evidence in relation to that colleague’s illness or the circumstances around which she was off work.

Considering all of the foregoing points, I find that the Complainant has failed to establish a prima facie case of discrimination in respect of this complaint in the cognisable period.

CA-00068291-002:

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 insubsection (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 ofparagraph (a), constitute discrimination.

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

(h) that they are of different race, colour, nationality or ethnic or national origins (“the ground of race”),

Like work.

7.—(1) Subject to subsection (2), for the purposes of this Act, in relation to the work which one person is employed to do, another person shall be regarded as employed to do like work if—

(a) both perform the same work under the same or similar conditions, or each is interchangeable with the other in relation to the work,

(b) the work performed by one is of a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant to the work as a whole, or

(c) the work performed by one is equal in value to the work performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

(2) In relation to the work which an agency worker is employed to do, no person except another agency worker may be regarded under subsection (1)as employed to do like work (and, accordingly, in relation to the work which a non-agency worker is employed to do, an agency worker may not be regarded as employed to do like work).

Entitlement to equal remuneration.

19.—(1) It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other relevant time, is employed to do like work by the same or an associated employer.

(2) In this section ‘relevant time’, in relation to a particular time, is any time (including a time before the commencement of this section) during the 3 years which precede, or the 3 years which follow, the particular time.

(3) For the purposes of this Part, where B’s employer is an associated employer of A’s employer, A and B shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.

(4) (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 remuneration compared with other employees of their employer.

(b) Where paragraph (a)applies, the persons referred to in that paragraph shall each be treated for the purposes of subsection (1)as complying or, as the case may be, not complying with the provision concerned, whichever results in the higher remuneration, unless the provision is objectively justified by a legitimate aim and the means of achieving the aim are appropriate and necessary.

(c) In any proceedings statistics are admissible for the purpose of determining whether this subsection applies in relation to A or B.

(5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the gender ground, different rates of remuneration to different employees.

Burden of proof.

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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission undersection 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to whichsection 9applies of a provision which, by virtue of that section, is null and void.

(5) The European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001 (S.I. No. 337 of 2001), in so far as they relate to proceedings under this Act, are revoked.

Findings:

It has been the well-established practice of the WRC and the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that he or she was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated: “The first requirement is that the complainant 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 complainant 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”.

In the case of Arturs Valpeters v Melbury Developments Ltd [2010] 21 E.L.R. 64 the Court stated in respect of the provision in S 85A 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 must be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

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

So, it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the Respondent to rebut the inference of discrimination raised.

The Complainant in this case stated that he was directly discriminated against on the grounds of his race in relation to his pay given that he performed like work or work of equal value with two named comparators B and O who are of a different race to him.

The Respondent stated firstly that both of his named comparators are at a different pay grade to the Complainant. Specifically, he is a L61, while both comparators are L60.

The Labour Court stated however in the case of Paula Reid v Teagasc (EDA2437)that “a difference in grade between a Complainant and comparator does not always provide a sufficient defence to an employer in an equal pay claim.”

The Court in that matter further cited the case of Susanna Brunnhofer v Bank der österreichischen Postsparkasse AG C-381/99 where the ECJ at paragraph 42 held that:

“…it is clear from the Court's case-law that the terms the same work, the same job and work of equal value in Article 119 of the Treaty and Article 1 of the Directive are entirely qualitative in character in that they are exclusively concerned with the nature of the work actually performed (see Macarthys, cited above, paragraph 11, and Case 237/85 Rummler [1986] ECR 2101, paragraphs 13 and 23)”.

Prior to assessing whether the Complainant and his comparators performed work of equal value however, I must first determine whether the comparators in fact received higher remuneration than the Complainant. In this regard, I note that the Complainant presented no evidence demonstrating that either of their salaries were higher than his. Instead, he solely gave evidence that certain elements of their remuneration exceeded his. Specifically, he asserted that although the comparators were operating at a lower grade, they received higher bonuses, stock incentive awards, and merit increases.

The Respondent, however, argued at the outset that the Complainant’s compensation ratio is significantly higher than that of his comparators because he is positioned at a higher grade. They further contended that differences in merit awards are not directly comparable, as employees with a higher compensation ratio—such as the Complainant—have less scope for merit increases. The Respondent also highlighted that any reduction in the Complainant’s 2023 bonus, relative to his comparators, was entirely attributable to his underperformance.

In considering all of the above, I note that section 2 of the Act states as follows:

“remuneration”, in relation to an employee, does not include pension rights but, subject to that, includes any consideration, whether in cash or in kind, which the employee receives, directly or indirectly, from the employer in respect of the employment;

Remuneration for the purposes of this case is therefore inclusive of all elements of an employee’s package except for pension and includes salary, bonuses, stock incentive plans and merit increases. While the Complainant may therefore have received an inferior bonus, stock incentive or merit increase when compared to his comparators, there was no evidence presented by him to suggest that his entire “remuneration” as set out in the Act was inferior to that of his comparators.

Accordingly, I find that the Complainant has failed to establish a prima facie case of discrimination on this basis alone. As a result, there is no basis for proceeding to any further analysis of whether the Complainant performed like work in comparison with his purported comparators.

CA-00068291-004:

Section 11 of the 1997 provides as follows:

Daily rest period

11.—An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer.

As the Complainant failed to present any evidence of any instance where he did not receive a daily break of 11 hours, I find that this complaint is not well founded.

CA-00068291-005:

Section 12 of the Organisation of Working Time Act 1997 imposes a statutory obligation on employers to provide appropriate rest breaks to employees. Specifically:

• Section 12(1): An employer shall not require an employee to work more than 4 hours and 30 minutes without granting a break of at least 15 minutes.
• Section 12(2): An employer shall not require an employee to work more than 6 hours without granting a break of at least 30 minutes, which may include the 15-minute break referred to in subsection (1).

Section 3(2)(c) of the Act provides that Part II does not apply to:

"...a person the duration of whose working time (saving any minimum period of such time that is stipulated by the employer) is determined by himself or herself..."

This provision was considered in M & J Gleeson & Company v. Robert Maloney [DWT1395], where the Labour Court held:

"Based on the evidence provided, the Court cannot accept that the Complainant was a person the duration of whose working time is determined by him. The times when he was required to perform his work were essentially dictated by fulfilling customer orders, which was the main function of the business."

Similarly, in Erac Ireland Limited v. Eddie Murphy [DWT1583], the Labour Court found that the complainant's hours were dictated by the business's operational needs and, as such, he did not have control over his own working time.

Findings

The Complainant alleged that he did not receive the required rest breaks during his employment.

The Respondent argued that as far as they were concerned the Complainant had full control over his working hours and that he had blocked out time for daily breaks in his electronic work calendar.

Having considered the statutory provision under Section 3(2)(c), the relevant case law, and the evidence from both parties, I find the Complainant’s account to be credible and accept his evidence that he did not actually take his breaks even though the break times were blocked out in his calendar.

I also note that under Section 25(1) of the Act, employers are required to maintain records demonstrating compliance with working time provisions. The Respondent failed to produce any such records to show that the Complainant received the rest breaks mandated under Section 12.

For the reasons outlined above, I find that the complaint is well-founded.

CA-00068291-006:

Weekly working hours.

15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

(4) A reference period shall not include—

(a) any period of annual leave granted to the employee concerned in accordance with this Act

Findings:

Although I accept the Complainant’s evidence that he frequently worked in excess of 50 hours per week, it is not disputed that he worked only for a total of five weeks and one day during the cognisable period — that is, between 21 June 2024 and 20 December 2024.

However, as is clear from the legislation cited above, for a complaint to succeed under section 15 of the Act, an employee must have worked more than an average of 48 hours per week over a four-month period. Given that the Complainant was only in work for only five weeks and one day within the cognisable period, it is not possible for him to have worked an average of more than 48 hours per week over any four-month reference period.

Accordingly, I find that this complaint is not well founded.

CA-00068291-001:

As the Complainant failed to establish a prima facie case of discrimination, I find that he was not discriminated against.

CA-00068291-002:

As the Complainant failed to establish a prima facie case of discrimination, I find that he was not discriminated against.

CA-00068291-003:

This complaint was withdrawn.

CA-00068291-004:

I find that this complaint is not well founded for the reason set out above.

CA-00068291-005:

I find that the complaint is well founded for the reasons set out above.

Section 27(c) affords me the jurisdiction to require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.

I note that the right to rest breaks is derived from the Working Time Directive, and that the Von Colson Principles therefore apply.

I find that the breaches of the Act in this case are at the lower end of the spectrum, especially given that the Complainant only worked for 5 weeks and 1 day in the cognisable period.

Considering the foregoing, I direct the Respondent to pay the Complainant compensation in the amount of €3,000 for the breach of his statutory rights. For the avoidance of doubt, this amount is not in the nature of remuneration and should not be treated as such for the purposes of tax or other deductions.

CA-00068291-006:

I find that this complaint is not well founded for the reasons set out above.

CA-00068291-007:

This is a duplicate complaint and has been addressed in the context of CA-00068291-007.