Complainant

Respondent

Parties

Artur  Hurtovji

Kaizen Workforce Solutions Limited

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act 2000

CA-00071842-001

23/05/2025

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

CA-00071842-002

23/05/2025

On the 23rd May 2025 the Complainant referred complaints to the WRC wherein he claimed that he was subjected to discriminatory treatment by the Respondent on the grounds of his race. The Respondent denied the Complainant’s complaint in its entirely.

The Complainant was not represented and made his own case. He relied on the narrative as outlined in the WRC Complaint Form and the supplemental documentary evidence submitted to the WRC in advance of the hearing. No objection was raised in relation to any of the documentary evidence relied upon by the Complainant in the course of making his case.

The Complainant claimed that on the 21st May 2025 he was refused access to employment by the Respondent despite holding a valid work entitlement under the Temporary Protection Scheme for Ukrainian nationals in Ireland. He submitted his renewal application on the 20th February 2025 and stated that under Irish law he retained the full legal right to work while awaiting renewal. The Complainant stated that he sent a screen shot of an email from immigration confirming receipt of his renewal application and that he was under the protection of the scheme until 20/02/2025.  He stated that the Respondent’s refusal was explicitly based on the absence of the renewed letter which is not a legal requirement to verify the right to work. The Complainant stated that he was told by the Respondent that he could not be employed until he received updated documentation which constituted a misunderstanding or misapplication of the law by the Respondent. He stated that he provided evidence of his legal entitlement to work and he made efforts to resolve the situation however his legal position was dismissed. It was only when he raised the issue of filing a formal complaint with the WRC that the Respondent responded to him and offered to proceed with his placement into a role but this did not undo the discriminatory treatment he experienced initially.

In response to questions from the Adjudication Officer the Complainant stated that he sent an expression of interest in relation to a role advertised by the Respondent around the 13th / 14th May 2025 but that he got an out of office reply. He confirmed that his first contact with a team member from the Respondent’s talent team was on the 21st May 2025, that when the documentation submitted by him was queried by the team member the matter was referred to the Operations Manager, that he had contact with the Operations Manager on the 22nd May 2025 with a view to arranging an in person meeting and that he met with the Operations Manager on the 23rd May 2025 who confirmed, prior to the Complainant referring his complaint to the WRC, that the Respondent could progress with the Complainant’s registration. He noted however that the Respondent completed the registration process without him submitting any further documentation. The Complainant also confirmed that on the 23rd May 2025 he was placed into the role he had enquired about initially and that he commenced employment with this company on the 26th May 2025.

The Respondent was represented by its HR Director and the HR Generalist at the hearing. The Respondent provided a written submission and documentary evidence to the WRC on the 27th November 2025. No objection was raised in relation to any of the documentary evidence relied upon by the Respondent in the course of making its case.

The Respondent denied that it discriminated against the Complainant on the grounds of his race. The Respondent is a recruitment agency which places individuals (referred to as “colleagues”) with third party client companies. As part of its duties as a recruitment agency the Respondent has a due diligence requirement to ensure that all colleagues meet the right to work compliance requirements under statute and compliance is dealt with before the Respondent places colleagues with third party companies. Where the Respondent has a query they refer to the Department of Justice, Home Affairs and Migration guidelines. The team member had queries and referred to the said guidelines and sought the assistance and guidance of the Operations Manager, who engaged with the Complainant directly to resolve matters. The Complainant’s first contact with the team member was on the Wednesday the 21st May 2025, he engaged with the Operations Manager on the 22nd May 2025, met with the Operations Manager in person on the 23rd May 2025 who confirmed that having verified its legal position the Respondent could process the Complainant registration. The role the Complainant had enquired about was confirmed with the Complainant on Friday the 23rd May 2025 and he commenced employment with the third party company on Monday 26th May 2025. It took the Respondent less than two working days to resolve matters and place the Complainant in a role.

It was submitted that at no point did the Respondent treat the Complainant less favourably due to race, nationality or ethnic status. The delay of two days in processing his registration was based solely on a need to verify his employment status. The Respondent company has consistently required all candidates to furnish up to date documents proving their right to work in Ireland. The Respondent acted in a lawful, fair and inclusive manner. The Respondent is committed to upholding equal opportunity in its practices and rejected the claim that it acted in a discriminatory manner.

In response to questions from the Adjudication Officer the HR Director stated that the Respondent does not process any individual or any nationality through the registration process unless they can meet the compliance requirements. At the time the Respondent queried the compliance documentation with the Complainant the Respondent as a recruitment agency had over 115 Ukrainian nationals working in placements all of whom had met the compliance requirements. It was submitted that the Respondent’s actions were based solely on its legal obligations and not as a result of the Complainant’s race. The Respondent’s aim was to ensure legal compliance in employment eligibility. The requests made of the Complainant were consistent with the Respondent’s hiring process, applied equally to all individuals looking to register with the Respondent.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

CA-00071842-001: Equal Status Act 2000

This complaint was withdrawn at the hearing.

CA-00071842-002: Employment Equality Act 1998

Discrimination for the purposes of this Act

Section 6 (1) of the Employment Equality Acts 1998 (as amended) (hereinafter referred to as “the 1998 Act”) states:

For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as "the discriminatory grounds"), one person is treated less favourably than another is, has been or would be treated.

Section 6 (2) provides that: as between any two persons, the discriminatory grounds are inter alia:

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

The Burden of Proof

Section 85A of the 1998 Act provides 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.”

The effect of section 85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.

The WRC and the Labour Court’s approach to this issue and the test for applying section 85A of the 1998 Act is well settled in a line of decisions of both bodies starting with the Labour Court’s Determination in Mitchell v. Southern Health Board [2001] 12 E.L.R. 201 wherein the Labour Court stated:

“the 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 where 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 case of Minaguchi v. Wineport Lakeshore Restaurant No. EDA034 the “the primary facts” were defined as follows:

“It appears to me that the three key elements which need to be established by a claimant to show that a prima facie case exists are:

that she/he is covered by the relevant discriminatory ground(s)

that she/he has been subjected to specific treatment and

that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.

In Mary Margetts v. Graham Anthony & Company Limited EDA038 the Labour Court stated that “[t]he 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.”

The Labour Court, in its decision in Arturs Valpeters v. Melbury Developments Ltd [2010] 21 E.L.R. 64, addressed the onerous nature of the burden of proof:

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

The Labour Court has also consistently stated that:

“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”: Kieran McCarthy v. Cork City Council EDA082

The Complainant bears the burden of proof in establishing facts from which an inference of discrimination can be drawn. If the Complainant establishes a prima facia case of discrimination, the burden of proof shifts to the Respondent to rebut the prima facie case. This will require cogent evidence.

In accordance with case law cited above to succeed in a complaint of discrimination the Complainant must establish that he comes within one of the discriminatory grounds, namely the race ground, that he was subjected to specific treatment and that the treatment was less favourable than someone not covered by the discriminatory ground.

In the instant case the Respondent is a recruitment agency that facilitates the temporary placement of individuals, referred to in the documentation and evidence as “colleagues”, in third party companies. It is common case that in or around the 13th / 14th May 2025 the Complainant expressed an interest in a role advertised by the Respondent with a third party company. The team member from the Respondent’s talent team who was dealing with the role was out of the office and upon her return on the 21st May 2025 she reached out to the Complainant to explain the Respondent’s standard registration process. On the 21st May 2025, having been put on notice that the Complainant was a Ukrainian national, the team member requested a copy of the Complainant’s right to work. Documentation was sent by the Complainant to the team member who noted that the letter furnished by the Complainant had expired. Guided by the Department of Justice, Home Affairs and Migration guidelines the team member queried whether the Complainant had re-applied.

The relevant portion of the guidelines state: 

“In the event that an employee’s IRP card has expired and they are unable to obtain a valid registration card prior to the expiration date of their current IPR card, they are legally permitted in the State under the conditions of their existing IPR card until their application is processed and a decision has been made. This provision is contingent upon the employee providing evidence that they have submitted an application for renewal of their Temporary Protection.”

The Complainant was unhappy that the team member was querying the documentation furnished by him however having had sight of the messages passing between the Complainant and the Respondent and the documentation which the Complainant attached to these messages I consider the decision of the team member to raise queries in relation to the documentation to be reasonable in all the circumstances. Following further engagement from the Complainant the team member sought guidance from the Operations Manager who advised that he would engage with the Complainant to try and resolve matters.

The Complainant and the Operations Manager engaged in communication and on the 22nd May 2025 the Operations Manager invited the Complainant to attend the Respondent’s office. The Complainant expressed a desire to record the meeting however he was informed by the Operations Manager that he was not permitted to do so. The Complainant questioned the legal issues surrounding this however he ultimately agreed to attend the Respondent’s office on Friday the 23rd May 2025 at 1pm. The HR Director gave evidence that by the time the Operations Manager met with the Complainant the Respondent had verified its legal position and the Complainant was informed during the course of the meeting that the Respondent was in a position to complete the process of his registration. The Complainant indicated that the was happy to continue with his application for registration and he acknowledged that he was put forward for the role which he had expressed an interest in with a start date of the following Monday. After the meeting on the 23rd May 2025 the Complainant informed the Operations Manager that he had sent a notification to the WRC under the Equal Status Act 2000. On Monday the 26th May 2025 the Complainant commenced working with one of the Repsondent’s clients on the night shift. On the 30th June 2025 the Complainant informed the team member that he was experiencing some health issues and that he was tendering his resignation. He completed his last day of work on the 3rd July 2025.

The Complainant gave evidence that he was a Ukrainian national and that he was discriminated against on the race ground on the 21st May 2025 when he was requested by an employee of the Respondent to confirm that his documentation was in order for him work in Ireland and having confirmed his belief that his documentation was in order when the Respondent failed to process his registration. The Complainant stated that the Respondent “refused him” because he did not have an IPR card and that asking for this documentation was a direct violation of Irish employment equality protection.

The HR Director presented as credible witness. She explained that as a recruitment agency the Respondent receives opportunities from third party companies and that its role is to source and engage individuals to fill the roles within these third party companies and that is not in the Respondent’s interest to withhold employment from any individual who holds a valid work permit. She stated that the Repsondent’s registration process is standard irrespective of race or nationality and that the Respondent has consistently required all candidates to furnish up to date documents proving their right to work in Ireland. In response to questions from the Adjudication Officer the HR Director stated that the Respondent does not process any individual or any nationality through the registration process unless they can meet the compliance requirements. I note that at the time the Respondent queried the compliance documentation with the Complainant the Respondent as a recruitment agency had over 115 Ukrainian nationals working in placements all of whom had met the compliance requirements. She stated that registration delays because of compliance had occurred previously and with other nationalities and in those situations the Respondent would have met the individuals, as they did with the Complainant, to attempt to resolve matters if a meeting was required. In other cases engagement through text message or phone calls would be sufficient to resolve matters. She stated that the Respondent deals with individuals of varying levels of English so it would be supporting their understanding. I accept as credible the evidence proffered on behalf of the Respondent that its actions were based solely on its legal obligations and not as a result of the Complainant’s race or nationality and that the request made of the Complainant was consistent with the Respondent’s hiring process applied equally to all candidates wishing to register with the Respondent.

The Complainant’s evidence that the Respondent only engaged with him and gave him a job because he threatened to refer a complaint to the WRC lacked credibility and was unsupported by the documentary evidence. The Respondent categorically denied that the threat of the referral of a complaint to the WRC had any bearing on the processing of the Complainant’s registration. The HR Director gave credible evidence that having verified its legal position the Respondent was able to process the Complainant’s registration on the 23rd May 2025. I am satisfied that the manner in which the Respondent engaged with the Complainant was standard protocol and that the Respondent was actively engaging with the Complainant prior to the threat of the referral of a complaint to the WRC and after the Complainant advised the Respondent that he had in fact referred a complaint.

Taking into consideration the case law referred to above and having regard to the documentation furnished by the parties to the WRC and the evidence presented at the hearing I find that the Complainant has not demonstrated sufficient facts and there was no relevant evidence presented by him from which it may be inferred on the balance of probabilities that the Respondent discriminated against him on the race ground. The Complainant’s mere speculation and assertions that the Respondent’s request for documentation confirming his right to work in Ireland and its refusal to accept his assurances that he had a legal entitlement to work in Ireland and process his registration so he could access employment were as a result of his race, nationality or ethnic origin was unsupported by credible evidence as was the Complainant’s mere speculation and assertion that the Respondent only processed his registration because he threatened to refer a complaint to the WRC. Therefore, I find that he has not discharge the burden of proof in relation to his complaint of discrimination on the race ground and has therefore not established a prima facie case of discrimination. Consequently, I find that the complaint is not well-founded.

CA-00071842-001: Equal Status Act 2000

This complaint was withdrawn at the hearing.

CA-00071842-002: Employment Equality Act 1998

As I have found that the Complainant has failed to establish a prima facie case of discrimination, I find that his complaint is not well founded.