Complainant

Respondent

Anonymised Parties

A Healthcare Professional

A Healthcare Provider

Representatives

Hayley O’Donnell BL instructed by Sweeney McGann LLP Solicitors

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-00071399-001

07/05/2025

The Complainant was an employee of the Respondent from the 2nd of July 2024 until the 7th of March 2025. She issued a letter of resignation on the 13th of January 2025.

The Complainant was employed on a multi-disciplinary team of allied health professionals as a Senior Physiotherapist.

The Complainant alleges she was discriminated against on the grounds of race and of age, specifically that as a young Asian clinical professional she was discriminated against and ultimately suffered constructive discriminatory dismissal.

The Complainant provided written submissions and oral evidence.

Where relevant I have referred to this evidence in the findings section of this decision.

The Complainant alleges that she was subject to unfair criticism of her performance and treated differently from her colleagues who were not the same race or age. A patient of hers was hospitalised the day after a house visit and she was blamed and accused of not noticing or reporting symptoms which were not there. She was then subject to a further complaint from her manager and a number of colleagues and these were all referred for investigation. She continued to engage with that investigation after her employment ended but she was not afforded a fair process.

The Respondent disputes the Complainant’s complaints in their entirety. Their submission is that she was undergoing her probation period and was subject to entirely reasonable feedback in circumstances where her performance was not sufficient.

A serious concern came to light in November 2024 and they sought to investigate it.  These matters are entirely unrelated to her race and age.

The Law

Sections 6 and 8 of the EEA prohibit employers from discriminating against employees on the basis of gender. For the purposes of the complaint before me, the most relevant parts are:

“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,

[…]

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

[…]

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

[…]

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

 […]

8. (1) In relation to—(a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or (e) classification of posts, an employer shall not discriminate against an employee […

Section 85A of the EEA provides for the allocation of the probative burden between a complainant and a respondent as follows:

“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.”

Ms O’Donnell for the Respondent has cited Southern Health Board v. Mitchell [2001] ELR 201 (the “Mitchell Case”), the Labour Court held:

“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.”

Ms O’Donnell also highlights the Labour Court decision Melbury -v- Valpeters EDA/0917 which discusses the facts a complainant must establish to shift the burden of proof, stating:

“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”

Section 77(5) of the EEA states that (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.

In order for the Complainant to succeed in demonstrating a continuum of discrimination, she must demonstrate that there were acts of discrimination within a period of 6 months prior to the lodgement of the Complaint which were sufficiently linked to the other alleged acts of discrimination.

The cognisable period for this complaint is from the 6th of December 2024.

The Complainant has also submitted that her resignation in January 2025 constituted constructive discriminatory dismissal, that is where an employee is constructively dismissed due to discriminatory actions. By its nature this complaint could involve matters which occurred outside the cognisable period which are alleged to have contributed to the decision to resign.

Findings Arising from the Complainant’s Unchallenged Evidence

The Complainant’s allegations of discrimination begin at the start of October 2024. The Complainant was receiving performance feedback which she considered to be unfair and discriminatory, in that her colleagues were not receiving similar feedback or being held to account in the same way. While the Complainant did identify some Irish employees I am not satisfied that she was being treated differently to suitably comparable employees. The Complainant was a new employee, in a senior and specialist role, undergoing the additional scrutiny of probation. This scrutiny is of course the whole point of probation.

The Complainant’s evidence was that she was being spoken down to in meetings throughout this time. She was being mistrusted when it came to issues like attendance and mileage. She had a probation meeting on the 24th of October and received a lot of negative feedback which she did not accept and challenged by pointing to instances other colleagues who had failed to meet the standards she was being held to.

In late November the Respondent became concerned that a symptom of poor health may not have been spotted by the Complainant in the course of a house visit. A more junior employee attending house visit mentioned this to the Complainant on their way back from the visit and then later reported this. The patient’s health later deteriorated and the question arose whether it could have been addressed sooner. The Complainant disputes that there was such a symptom present at that time and gave cogent evidence as to her conduct in the course of the visit and the discussion she had with her colleague on the drive back.

The Complainant’s evidence was that she was directly blamed for this incident by her line manager once it was reported. The Complainant’s mental health deteriorated and she went on sick leave from the end of December. Some of her GP certs identified workplace bullying as the cause.

On the 4th of December the Complainant reached out to HR and weas given an appointment with the head of HR. She explained that she was suffering from depression related to being blamed for patient incident and that she had been threatened with dismissal in probation meetings with dismissal and was on a Performance Improvement Plan (“PIP”). She was told by the Head of HR that it was normal to investigate in these circumstances.

After the meeting the Head of HR emailed her and reminded her about the grievance procedure and EAP.  She didn’t raise a grievance as she was not in good enough health to engage in a formal process at that point and she believes HR were aware of the issues she was concerned about.

As outlined above the cognisable period for breaches of the act runs from the 6th of December.

The Complainant’s engagement with occupational health was positive and her health improved and she felt more confident about returning to work and raising her issues with the Respondent. She was signed as fit to return to work by her GP for the 12th of December. This was a Thursday but she was asked to return the next day, the Friday as her line manager was offsite.

The Director of Services called her on the 12th and told her a formal complaint had been lodged by her manager and suggested it related to alleged patient incident in November. She was told to come in on the 13th to talk to them and was told she could bring a Union rep. The Complainant told them she would not attend meeting as had not been given enough notice. On the 13th she was issued with a formal complaint which had been authored by her manager. This letter was not limited to the patient issue but was an overview of allegations about her competence as well as new allegations of her omitting and changing notes. The Complainant refutes these allegations.

Eleven other employees were identified as having made complaints about the Complainant in this letter.  On the 18th of December the Complainant had a meeting with the Director of HR, they discussed the complaint and the fact that there would be an investigation. The Complainant was offered the choice of desktop duties or paid leave and she indicated that it was up to the Respondent and she didn’t mind. She was placed on leave.  The Complainant indicated that she would resign but would engage with the investigation and prove herself innocent. On the 19th of December she returned her company devices.

The Complainant did not resign at that point and waited for the terms of reference for the investigation to issue. This happened on the 10th of January and these terms of reference expanded the scope of the investigation and again raised new issues. This caused significant distress to her and she decided to resign by way of a letter dated the 13th. The Respondent replied on the 17th and asked her to reconsider and to consider lodging a grievance or other formal complaint so they could investigate this.

Conclusions

On review of the above I am not satisfied that the Complainant has made out a primae facia case that discrimination occurred within the cognisable period.

The Complainant was subject to a serious complaint which the Respondent decided to investigate. This would be expected particularly in the context of a healthcare setting. There is no evidence that the Respondent only decided to investigate this complaint because of the Complainant’s race and/or age.

The Complainant has also submitted that her resignation in January 2025 constituted constructive discriminatory dismissal, that is where an employee is constructively dismissed due to discriminatory actions.

For this complaint to succeed the Complainant would need to establish that she was constructively dismissed. Her oral evidence was that she resigned due to the pressure of the impending investigation and the increased scope of that exercise. Her resignation letter went further and also alleged that she had been subject to harassment, discrimination, constant disapproval, rude behaviour and false allegations.

As outlined by UK Court of Appeal in the seminal case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 there are grounds under which a person can claim constructive dismissal. The “contract ground” and the “reasonableness” ground.

 Lord Denning, in that Judgment, described the reasonableness ground as:

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be fairly be expected to put up with it any longer, the employee is justified in leaving.”

This test examines the reasonableness of both parties’ conduct and, as outlined in Conway v. Ulster Bank Limited UDA 474/1981, that will normally require an employee to first substantially utilise the internal grievance and complaint procedures to allow the employer an opportunity to consider and investigate any claims of wrongdoing before their resigning.  

In this case the Complainant failed to do so despite the Respondent inviting her to make an internal complaint at least twice.  

I do not conclude that the Complainant was constructively dismissed and as such she could not have been subject to constructive discriminatory dismissal.

I find that the complaint is not well founded.