Complainant

Respondent

Parties

Soya  Binoy

Children's Health Ireland

Representatives

Derek Reilly INMO

Laura Kerin IBEC

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-00073953-001

31/07/2025

This dispute concerns a claim by Ms. Soya Binoy that she was subjected to discriminatory treatment, harassment and systemic racism by her employer Children's Health Ireland (CHI), Temple Street. Ms. Binoy is an Indian Citizen.

It arises from the manner in which Ms. Binoy was treated during what CHI characterised as a probation process, and in particular the meeting of  January 31st,  2025, where she was informed that she had failed probation, despite having already passed her probation approximately four months earlier.

The process was unfair, intimidating, procedurally flawed and racially motivated and the treatment she experienced had an impact on her wellbeing, dignity, and professional standing.

CHI relied on a probation process despite Ms. Binoy having already been made permanent and the probation had not been properly extended. She submitted a grievance February 4th, 2025, an addendum statement on March 21st, 2025, and a supplementary workplace statement on April 8th, 2025.

Ms. Binoy commenced employment with CHI Temple Street as a Staff Nurse in the Operating Theatre. Prior to commencing with CHI, she had worked as a registered nurse in Ireland but wished to progress her career in paediatrics and applied for a position in CHI. She has a master's in nursing in paediatrics and had engaged with the Nursing and Midwifery Board of Ireland regarding her registration requirements.

Her understanding was that she was required to undertake an adaptation programme in a hospital relevant to her speciality as a children's nurse and she secured a Staff Nurse position with CHI Temple Street.

Ms. Binoy's contract commenced on April 1st, 2024. She commenced duty in CHI Temple Street on April 3rd  2024. Her formal adaptation began on 29 April 2024, involving two weeks classroom instruction and nine weeks of practical training. After eleven weeks, Ms. Binoy successfully signed off her adaptation and received her registration as a Registered Children's Nurse with the NMBI.  Her contract of employment commenced on April 1st, 2024. Her probationary period was for six months and Ms. Binoy completed her probation on 30 September 2024.

On November 15th,  2024, the respondent sought to continue or extend Ms. Binoy's probation outside of any contractual provision but has confirmed that they do not have a Probation Policy.

Ms. Binoy says she was not given a proper opportunity to respond before the decision of 31 January 2025. This approach was racially motivated.

At the meeting of January 31st, 2025, where Ms. Binoy was informed that she had failed her probation, she had been made permanent and CHI had not properly extended her probation period, had not engaged with her or provided her with any documentation or feedback in advance of the meeting of  January 31st, 2025.

Following that meeting, Ms. Binoy submitted a formal grievance on February 4th, 2025, in which she raised serious concerns regarding unprofessional behaviour, unfair treatment, intimidation, harassment and systemic racism. She stated that these matters had affected her probationary period, her working environment and her physical and mental wellbeing.

Chronology of Key Events outlined in Grievance

April 2024

On commencing duty with CHI Temple Street on 3 April 2024 she was warned that bringing her family into the country could complicate her probationary situation. She says it created fear and uncertainty and made her feel that her personal circumstances could be used against her. Ms. Binoy's formal adaptation commenced on 29 April 2024.

July 2024

The complainant successfully completed her adaptation and received registration as a Registered Children's Nurse with the NMBI.  On 29 July 2024, she approached CNEF Ms. Janna Vea Pagaspas and asked whether she could continue as a Staff Nurse on the ward, as she felt more comfortable in that environment.

This request was refused and that she was told she had been assigned to work as a theatre nurse and that any request to change roles was not permissible. Ms. Binoy relies on this as part of her case that she was not properly supported and that her concerns were not meaningfully considered. Ms. Binoy's position is that this refusal was racially motivated.

During her first day of orientation in theatre, CNEF Ms. Janna Vea Pagaspas told her that she was the person who would decide whether Ms. Binoy passed or failed probation.

September 2024

Ms. Binoy six-month probationary period expired on September 30th,  2024. If CHI wished to extend probation after that date, this would have had to be done in accordance with her contract, the Employer's probation policy and in accordance with fair procedures. Due to the Employer's conscious and/or unconscious bias, the Employer did not afford Ms. Binoy the same procedures that are afforded to her Irish colleagues.

November 2024

CHI wrote to Ms. Binoy on 15 November 2024 regarding what it described as her probation period in theatre. By this point her original six-month probationary period had already expired on 30 September 2024. The letter did not properly explain the contractual basis on which CHI was purporting to continue or extend probation beyond that date.

The letter of 15 November 2024 recorded that she had achieved three competencies, namely knowledge and cognitive competencies, communication and interpersonal competencies, and leadership potential and professional scholarship competencies. It also acknowledged improvement and stated that continued support would be provided until the end of the probation period. The letter further stated that a final probation interview would take place on 29 January 2025.

This is significant because CHI identified further support as necessary, but the promised support was not provided in a meaningful way. She also says that the final probation interview did not take place in the fair and transparent manner indicated before she was informed on 31 January 2025 that she had failed probation.

The process relied upon by CHI was retrospective, unclear, not properly grounded in her contract, and not applied in a fair, transparent or objective manner. She says these matters support an inference that the outcome was predetermined and influenced by racial bias.

December 2024

In the first week of December 2024 she was unexpectedly asked to return her theatre workbook, which she had been using to document her progress and circulating procedures. This was due to the fact that the Employer wished to summarily dismiss Ms. Binoy due to her race.

She received no prior notice of this request and when she was exposed to complex theatre cases, she requested assistance to open the sets so that she could become more familiar with the procedures. She says this request was declined. This prevented her from gaining necessary experience and undermined her ability to improve and develop in the role.

While working in Theatre in December 2024, she was unfairly blamed in circumstances where she says she had stepped in and performed necessary tasks when another senior staff nurse did not assist in the case.

Ms. Binoy says she was later told by a senior staff nurse that she had done well and had handled the situation. However, she says she was scolded for not performing well and told that she could not place blame on senior nurses. Ms. Binoy says that she felt blame was unfairly placed on her while certain senior nurses were protected.

        January 2025

Ms. Binoy says that positive feedback from colleagues, CNM personnel and surgical teams was not properly considered before the decision was communicated to her on 31 January 2025.

In particular, she relies on positive feedback from an operating surgeon on 20 January 2025 commending the quality of her work during an orthopaedic case. She also relies on positive feedback from CNM2 personnel in Theatres 4 and 5. She says positive feedback was directly relevant to any fair assessment of her quality of performance but was not considered in her purported Probation meeting.

On 31 January 2025, she says she was unexpectedly summoned to an office by CNM3 Catherine O'Regan and CNEF Janna Vea Pagaspas and that the exit door was locked. This  escalated the sense of intimidation and caused her to feel trapped and fearful. Ms. Binoy has never witnessed an Irish colleague being threatened in this manner. During the meeting, she was informed by Ms. O'Regan that she had failed probation, despite there being no prior indication that such a decision was to be communicated at that meeting.

Ms. Binoy states that she was then required to hand over her ID badge, instructed to leave the hospital and pressured into signing probation-related documents. No formal interview had been conducted, despite the fact that such an interview had been indicated in correspondence dated 15 November 2024.

This was a racially motivated incident.

February 2025

Following the meeting of 31 January 2025, Ms. Binoy submitted a formal grievance on 4 February 2025 to Human Resources. She did not receive relevant probationary review and assessment documentation until 6 February 2025, after she had already been informed on 31 January 2025 that she had failed probation. She says this denied her a fair opportunity to review, challenge or respond to the material before the decision was communicated.

An informal meeting took place with the Nursing Director on 12 February 2025 and during that meeting, the Nursing Director acknowledged the events of 31 January 2025 and offered an apology for the distress she experienced. No notes were kept of this meeting.

Ms. Binoy also states that she was informed that the matter was still under review and "under process," with no clear resolution or further steps outlined at that time.

Following the grievance, Ms. Binoy sought to return to work in CHI Temple Street. CHI offered her the opportunity to transfer to CHI Crumlin,  she wished to remain in CHI Temple Street.

CHI initially refused to facilitate Ms. Binoy's return to Temple Street.

The INMO engaged with CHI over a number of months in relation to Ms. Binoy's return to work and her position that she should not be required to transfer to CHI Crumlin when she wished to return to Temple Street and when her grievance regarding her treatment in Temple Street remained unresolved.

March 2025

On March 21st  2025, Ms. Binoy submitted an addendum to her grievance,  confirming  the facts in her original grievance and also raising further concerns regarding the probationary review.

In the final assessment, marks were reduced in areas including knowledge competencies and communication competencies, without a final interview being conducted. Ms. Binoy says this supports her position that the assessment process was not fair, transparent or objective.

She challenged the reliability of the employer's records. She also says that relevant matters were omitted, including her occupational injury of 23 January 2025 and the meeting of 31 January 2025.

These discrepancies and omissions further undermine the reliability of the probation assessment and support Ms. Binoy's position that the process was not fair, transparent or objective.

March to May 2025

Between February and May 2025, the INMO continued to engage with CHI regarding Ms. Binoy's return to work. The INMO position was that Ms. Binoy should be allowed to return to CHI Temple Street and should not be required to transfer to CHI Crumlin in circumstances where she wished to remain in Temple Street.

Following further engagement between the INMO and CHI, Ms. Binoy was eventually permitted to return to CHI Temple Street in May 2025.

July 2025

Ms. Binoy continued to engage with CHl's internal process. CHI initially indicated that the matter would be referred externally for independent investigation through the HSE. This was important given the seriousness of the matters raised by Ms. Binoy including allegations of racism.

However, on or about 25 July 2025, CHI advised that the investigation would instead be conducted internally by CHI and not by the HSE National Investigation Uni.

This change undermined confidence in the internal process.

The Law

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur where a person is treated less favourably than another person is, has been, or would be treated in a comparable situation on any of the discriminatory grounds.

Section 6(2)(h) provides for the race ground, including race, colour, nationality or ethnic or national origins. Section 8 of the Acts prohibits discrimination by an employer in relation to access to training or experience for or in relation to employment, promotion or re-grading, or classification of posts.

The complainant relies on the race ground. Her treatment, including the manner in which she was assessed, not supported, spoken to, managed and removed from the workplace, was discriminatory and connected to her race, nationality and/or ethnic or national origins.

The Law Applied to the Facts

The facts set out in this submission are sufficient to establish a prima facie case of discrimination on the race ground. The process relied upon by CHI was not fair, transparent or objective and the decision to fail her probation was racially motivated and was reached under an incorrect and unfair framework which was not recognised in her contract of employment. She further says that this framework was not applied in the same way to her Irish colleagues.

The failure to properly support her, the alleged comments at the start of her theatre orientation, the refusal of support and familiarisation, the alleged negative assessment instructions, and the manner in which the meeting of 31 January 2025 was conducted must be viewed together.

The principle that lack of transparency and lack of objective criteria in an employment process can support an inference of discrimination, particularly where the complainant can point to unfairness, inconsistent treatment, and a failure to apply proper procedures.

The decision in Mey v St James's Hospital is relevant in this regard. In that case, the Equality Officer was satisfied that the lack of transparency in the interview process, together with the complainant's better qualifications and greater experience, established a prima facie case of discrimination on the race ground. The Equality Officer also found that the respondent had failed to apply objective criteria and was unable to shift the burden of proof.

In the same manner, Ms. Binoy says that CHI failed to apply a fair, transparent and objective process to her probation/adaptation assessment. She says that relevant positive feedback and evidence of improvement were not properly considered, and that the outcome appeared to her to be predetermined.

Ms. Binoy further says that the meeting of 31 January 2025 was conducted in an intimidating and degrading manner. She says that the exit door was locked by Ms Vea Pagaspas, she was told she had failed probation, she was required to hand over her ID badge, instructed to leave the hospital, and pressured into signing documents. Ms. Binoy's employer treated her like a second-class citizen.

The complainant says that this treatment violated her dignity and created an intimidating, hostile, degrading, humiliating and offensive environment, in particular given her Indian nationality.

 After raising her grievance, Ms. Binoy sought to return to CHI Temple Street. CHI initially refused to facilitate her return to Temple Street. It was only after engagement over a number of months between the INMO and CHI that Ms. Binoy was allowed to return to CHI Temple Street on 18 June 2025.

CHI initially indicated that the matter would be referred externally for independent investigation through the HSE but later withdrew from that position and advised that the investigation would proceed internally.

In view of the above, the complainant submits that the burden shifts to the respondent to prove that the treatment complained of was not discriminatory and was not connected to race, nationality or ethnic or national origins.

Cognisable Period

It is submitted this complaint has been submitted within the cognisable period, the most recent act of discrimination having occurred on the 25th of July 2025, when the Employer refused to proceed, as previously agreed, through the HSE NIU to complete the investigation of Ms. Binoy's grievance and complaint of racism.

While the first act of discrimination complained of took place in April 2024, there were ongoing acts of discrimination taking place throughout the period from April 2024, culminating in the decision of the 31st, of January 2025 to fail Ms. Binoy's probation outside of procedure in an attempt to dismiss her. The discrimination continued after the 31st, of January 2025 with further acts of discrimination taking place throughout Ms. Binoy's grievance process, including the refusal to allow her to return to work in Temple Street until June 2025.

In her Employment Equality complaint [CA-00073953-001], the complainant has alleged that she was subject to discrimination on the grounds of race by way of victimisation and further alleges that she was subject to racial harassment by her line managers.

She states that she raised a formal complaint on February 4th,  2025 which was not conducted in a timely or effective manner and further alleges that her line manager, the individual she accuses of racial harassment -, notified her of her failed probation without adherence to fair procedures.

The claim form was lodged with the WRC on 31 July 2025, meaning that the cognisable period for this claim is February 1st, 2025, to July 31st  2025 so the complaint is out of time, as the last date of discrimination listed in the claim form is January 31st,  2025.

The Respondent is fundamentally prejudiced in the defence of this claim due to the parallel, ongoing internal investigation into the Complainant’s Dignity at Work complaint (submitted on 4 February 2025). Crucially, the timeline demonstrates that the Complainant has actively continued to engage in this internal process subsequent to lodging the within WRC claim. Consequently, the Respondent cannot formulate or advance a substantive defence to the WRC without directly prejudicing the confidentiality and outcome of that ongoing internal procedure.

The Respondent strongly rebuts the Employment Equality claim in its entirety. There are no such discriminatory practices taking place in the Respondent’s organisation. The allegations of systemic racism and procedural failure made by the Complainant are unsubstantiated.

Further, it is the respondent's position that there are strong policies in place regarding Dignity at Work within the organisation. Once the matter was formally brought to the Respondent’s attention, a thorough and fair internal process was instigated to investigate the Complainant’s concerns.

In addition, the Complainant has failed in her duty to establish a prima facie case of discrimination, as she has not established any less favourable treatment based on race, nor has she provided any relevant comparator, nor any causal link between her probation failure and her race. The Respondent respectfully requests that the complaint fails.

Children’s Health Ireland (CHI) was formed in January 2019 to govern and operate paediatric services across Dublin. Bringing together hospitals at Crumlin, Temple Street, Tallaght and Connolly urgent Care Centres, to operate as a single service prior to transitioning to the new children’s hospital. CHI employs over 5400 people across its four sites.

The complainant began employment with the Respondent on April 1st,  2024 as a Staff Nurse in the Operating Theatre at CHI Temple Street. Between April 22nd, and  July 26th,  2024, she undertook an adaptation programme to attain her registration as a Registered Children’s Nurse with the NMBI. On 29 July 2024, the Complainant then transitioned back into the role of a Staff Nurse in the Operating Theatre. She earns a gross pay of €54,4100 per annum and works 37.50 hours weekly.

Preliminary 1: Complaint is Out of Time

The claim is out of time for the reasons set out above.

Therefore, the Adjudication Officer does not have jurisdiction to hear this complaint as it is statute barred. The entire timeframe identified as the period of alleged discrimination, i.e. the probation period, occurred outside the cognisable period of this claim. Consequently, these allegations are statute-barred and cannot be entertained by the Adjudication Officer

Section 41(6) of the Workplace Relations Act, 2015 provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.

Section 41(8) of the Workplace Relations Act 2015 provides that the six-month time limit should apply and that it can only be extended due to ‘’reasonable cause’’.

The  statutory time limits must be strictly construed, and that the reasons forwarded by the Complainant do not meet the requirements to constitute reasonable cause.

The tests applied by the Labour Court for extensions of time under the Organisation of Working Time Act (and other legislation with the same wording) have been well established. The respondent cites the case of Cementation Skanska v Carroll, DWT033, where the Court articulated the test.

“It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the Complainant at the material time. The Complainant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

“The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the complainant has a good arguable case.”

The Court’s explanation in Cementation Skanska, drew heavily from the High Court case of O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, where Costello J held that the test is an objective one and pointed out that a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings. Costello J stated:

“The phrase 'good reason' is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved plaintiff believed he/she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I 4 think the onus is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay”.

The rationale for late submission of the claim, namely that the complainant was engaging in good faith in the Respondents internal procedure, does not constitute reasonable cause.

It is a well-established principle in case law that the handling of an internal process does not alter the date of alleged discrimination. I note in the Labour Court Determination No:EDA177 Brothers of Charity Services Galway v Kieran O’Toole the Court held that.

“the Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limits provided under the Act. Section 77 of the Act is very clear, it specifies that a person who claims to have been discriminated against may seek redress by referring the case to the WRC, such a complaint should be in writing and submitted within the time limits provided for in Section 77(5).”

As demonstrated, the application of an internal procedure within the Respondent’s organisation does not extend the time limit for making a complaint to the WRC, nor does it work to change the date to which the alleged discrimination occurred. The legislation is clear on the matter, the clock starts ticking from the date of the discriminatory act, not from the conclusion or otherwise of any internal process.

The Complainant has attempted to unilaterally amend the last date of alleged discrimination to 25 July 2025, contradicting the date originally specified in the Complaint Form, which was subsequently reconfirmed by the Complainant’s Representative in correspondence to the WRC dated 9 September 2025. The Respondent requests the Adjudication Officer to reject this attempted amendment.

In Sheehy v Most Reverend James Moriarty UD1264/2008the Tribunal held that ‘the Tribunal was set up under statute by the Oireachtas and did not have the authority based on constitutional or natural law and justice principles to conduct a hearing where the claims were not instituted within the time periods set out in the legislation’.

In the case of Employee v Employer UD969/2009 , the Employment Appeals Tribunal was asked to decide on a preliminary matter first before moving to hearing the substantive case. Given the significant preliminary points raised, the Tribunal moved to hear the preliminary matter first and reached a decision on same.

In the case of Bus Eireann v SIPTU PTD048/2004 the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case ‘where it could lead to considerable savings in both time and expense’ and where the point was ‘a question of pure law where no evidence was needed and where no further information was required’ referencing the judgement of  O’Higgins CJ in Tara Exploration & Development Company Limited v Minister for Industry & Commerce [1975] IR 242.

The Complainant may argue ignorance in relation to the applicable time limit allowed for under the Act. However, the Respondent respectfully requests the Adjudication Officer notes the decision of the EAT in Byrne v PJ Quigley UD762/94  in which the Complainant, in arguing for an extension of the time limit in order to pursue his claim, argued that he was not aware of his rights/ the provisions of the legislation. The Tribunal found that ignorance of the law was not an excuse, and on this basis the Respondent argues that such an argument on the part of the Complainant would fail to “afford a justifiable excuse for the delay”.

The Respondent respectfully submits that the Adjudication Officer assigned to hear this case has no jurisdiction to do so, and therefore requests that the claims fail on the preliminary matter. The Respondent therefore contends that the complaint as detailed above is out of time.

It is the Respondent’s position that it is prejudiced in its defence of this claim, as the Complainant’s dignity at work complaint is ongoing within the Respondent’s organisation, a process which all parties are still engaging in. The simultaneous pursuit of an identical grievance at the WRC effectively bypasses the agreed internal procedures and prevents the Respondent from completing a comprehensive, objective investigation.

Consequently, to ensure procedural fairness and avoid conflicting findings, the Respondent respectfully submits that the current proceedings should be stayed or adjourned pending the formal outcome and exhaustion of the internal Dignity at Work process.

On 1 April 2024, the Complainant commenced employment. She then undertook an adaptation programme to attain her registration as a Registered Children’s Nurse with the NMBI between 22 April 2024 to 10 June 2024, which was then extended to 26 July 2024 due to the nature of the support plan provided to her during her adaptation period. On 29 July 2024, having successfully attained her RCN License, the Complainant then transitioned into the role of Staff Nurse in the Operation Theatre.

It was determined that the Complainants probation would run from 2 April 2024 to 29 January 2025 to accommodate her adaptation in Theatre (Document to Follow). During this time the Complainant met weekly with Ms Janna Vea Pagaspas, Clinical Nurse Education Facilitator, to discuss her progress.

On 5 September 2024 a supportive learning plan was put in place by Ms Pagaspas, in cooperation with the Complainant, as the Complainant had not been reaching the expected learning outcomes in her role as a scrub and circulating nurse. This plan was implemented based on a request from the Complainant herself and included signing weekly feedback forms which reviewed her performance and set goals, reviewing feedback forms from other members of staff regarding her performance, as well as submitting weekly reflective writings. Ms Pagaspas worked closely with the Complainant to reach the requisite learning outcomes during this time, facilitated by frequent Support Plan meetings (Document to Follow).

Subsequently the supportive learning plan was extended to 15 November 2024 as the requisite learning objectives had not been met.

On 15 November 2024, Ms Pagaspas wrote to the Complainant to confirm that the requisite learnings had not been demonstrated for 2 out 5 of competencies and therefore learning support would remain in place for the rest of the probation period. She further advised that a final probation meeting would be held on 29 January 2025, whereby termination of employment may be a potential outcome.

On 5, 12, 19, December 2024, and the 13, and 21 January 2025 Ms Pagaspas met with the Complainant to further discuss her performance and provide the requisite support (Documents to Follow).

On 31 January 2025, the Complainant attended a final probationary meeting with Ms. Catherine O’Regan, Clinical Nurse Manager (CNM), and Ms. Pagaspas, during which she was informed she had failed her probation as the necessary competencies and training outcomes had not been achieved during this timeframe. Ms. Pagaspas provides a summary of the extensive probation management engagement undertaken in her response to the Complainant’s allegations.

On 4 February 2025, the Complainant submit a formal grievance against her line managers Ms O’Regan and Ms Pagaspas relating to their management of her probation period, alleging systemic racism and harassment. She sought for a review of the probationary period to be undertaken by the Respondent organisation.

On 12 February, a meeting was convened with the Complainant, represented by Mr Derek Reilly of the INMO, and attended by Ms Emer Clarke, then Nursing HRBP, and Ms Charlotte O’Dwyer, Director of Nursing. The purpose of this meeting was to discuss the issues raised in the Complainant’s grievance. During this meeting Ms O’Dwyer acknowledged the events of 31 January 2025 and offered an apology for the distress the Complainant experienced. The Complainant was also offered the opportunity to transfer to the Theatre Department at CHI Crumlin.

On 27 February 2025, the Complainant’s Union Representative wrote to the Respondent requesting that the matter be progressed as a formal Stage 3 grievance per the Respondent’s Grievance Procedure. Mr Reilly also indicated that the Complainant would prefer to remain in her current position in CHI Temple Street but would consider a transfer to CHI Crumlin.

On 28 February 2025, the Respondent wrote to the Complainant and her Representative seeking for her to confirm the details of her complaint. On 18 March 2025, the Respondent wrote to the Complainant and her Representative to request that they formally capture the detail of her concerns, amongst other updates including return to work.

On 9 April 2025, the Complainant submit her formal complaint on 14 April 2025, the Complainant’s allegations were shared with Ms O’Regan and Ms Pagaspas. On 23 April 2025, the Complainant's Union Representative objected to the internally appointed investigator, Ms. Maurita Lawlor.

On 25 April 2025, to progress the matter and prevent distress, the Respondent agreed to request an external HSE investigator but clearly flagged that if there was a delay of more than one month, CHI would revert to appoint an internal investigator to ensure the complaint was progressed without undue delay and distress.

Between April and July 2025, there was ongoing correspondence and engagement between the parties regarding the independent investigation.

On 18 June 2025, following engagement between the parties, the Complainant returned to work in the Respondent’s organisation.

On 25 July 2025, the Respondent advised the Complainant’s Union Representative that the request for an externally appointed investigator had been reviewed and rejected.

CHI proceeded to draft formal Terms of Reference under the Dignity at Work policy and appointed Rachael O'Connor, CHI Transformation Lead, to conduct an impartial fact-gathering investigation).

On 31 July 2025 the Complainant lodged the complaint to the WRC prior to the conclusion of the Dignity at Work investigation.

The Respondent acknowledges that the following events occurred outside of the cognisable period of this claim, however, details are being provided for completeness regarding the ongoing management of the investigation. Documents relating to the below have been omitted due to being outside the cognisable period but can be provided upon request.

On 9 September 2025, an investigation meeting was held with the Complainant and her Union Representative to gather further information relating to her complaint. Minutes of the meeting were then shared with the parties and signed off by all in attendance. The Complainant signed off on these minutes on 10 December 2025.

On 17 September 2025, Ms Pagaspas provided a formal response to the allegations made against her by the Complainant. Ms O’Regan similarly provided a written response to the allegations made.

On 14 October 2025, a meeting was convened with Ms Pagaspas to further discuss the allegations against her. On 11 November 2025, a meeting was convened with Ms O’Regan to further discuss the allegations made against her by the Complainant.

Between 5 December 2025 and 27 February 2026, the investigator met with 12 witnesses to discuss the allegations made by the Complainant.

On 23 March 2026, the Complainant provided a written rebuttal to the statement submitted by Ms Pagaspas. On that same date, the Complainant provided a rebuttal to the statement submitted by Ms O’Regan.

On 5 May 2026, the Respondent provided the Complainant with an update on the investigation, including providing the Complainant with the witness statements gathered to date.

On 22 May 2026, the Complainant’s Union Representative reverted to the Respondent, outlining that they had reviewed the witness statements and were satisfied that the process should proceed to the next stage.

The DAW investigation remains ongoing.

The Complainant has submitted a claim to the WRC under Section 77 of the Employment Equality Acts 1998-2015. In her claim, she alleges that she was subject to discrimination on the grounds of race by way of victimisation. In the Complainant’s submission to the WRC, it is further alleged that she was subjected to discriminatory treatment, harassment and systemic racism by her employer. The Respondent refutes this claim in its entirety and rejects the allegations of discrimination.

Prima Facie Case of Discrimination & the Burden of Proof.

Section 85a of the Employment Equality Acts, 1998 – 2015 requires the Complainant to present facts from which it can be inferred that she was treated less favourably than another person is, has been, or would be treated, based on the discriminatory ground cited. This is applicable to claims of both discrimination, and indirect discrimination.

The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Teresa Mitchell, DEE011, [2001] ELR 201, where the Court stated:

“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 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 MargettsvGrahamAnthony&CompanyLimited,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.”

Furthermore, section 6 (1) of the Employment Equality Acts 1998 to 2015 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 relevant 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”),

Direct discrimination consists of two elements. The first is the less favourable treatment of the Complainant and the second is the existence of the relevant ground for such treatment. Both elements must be satisfied for a claim of discrimination on the grounds of race to succeed.

The Complainant has provided no evidence of less favourable treatment within the cognisable period of the claim. She alleges in her claim form that the Respondent discriminated against her in victimising her. In the Complainant’s submission to the WRC it is alleged that she was subjected to discriminatory treatment, harassment and systemic racism by her employer.

Firstly, as per the above preliminary argument, the Complainant’s final probationary meeting, which was outlined as the last date of discrimination in the claim form, was held outside of the cognisable period of the claim. Notwithstanding this, the Complainant was never dismissed as a result of this meeting and remains employed by the Respondent organisation.

Furthermore, with respect to any allegation of discriminatory treatment, the Complainant has failed to identify a relevant comparator to whom she was treated less favourably than on the grounds cited by her as required under section 6 (1)(a) of the Acts which defines discrimination as:

(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’)

The complainant’s submission simply states that ‘this framework [probation framework] was not applied in the same way to her Irish colleagues’. The complainant has failed to cite any comparators within the respondent’s organisation against whom it could be established that she was treated less favourably.

In addition, in the case Toker Developments Limited and Edgars Grods (Determination No EDA105) on the use of hypothetical comparators the Labour Court stated:

“It is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such a comparator would have been treated more favourably in the circumstances of the particular case. No such evidence was adduced and it would clearly be impermissible for the Court to reach conclusions of fact based upon merely supposition or speculation.”

No evidence exists to support a complaint of discrimination vis-à-vis a hypothetical or actual comparator. Therefore, the Complainant has failed to establish any discrimination as defined by the Act.

Further, she has failed to indicate any causal link between any alleged less favourable treatment and her race or to demonstrate any credible evidence to suggest that failing her probation had anything to do with her race.

In setting out this argument, the respondent is limited in its defence of the allegations as the internal investigation is ongoing, and the Respondent does not wish to prejudice the outcome of such proceedings. As such, the below is based only on the position forwarded by the Complainant in her claim form and submission.

The complainant asserts in her Complaint Form that her line manager stated she would determine whether the Complainant passed or failed her probation. That statement relates strictly to standard performance management and contains no nexus whatsoever to the protected ground of race.

Furthermore, her allegations regarding a conversation with Ms. Pagaspas around family relocation are fundamentally contradictory. While her claim form alleges this discussion took place on 29 July, her own recorded complaint of 9 April 2024 states it occurred on 2 April. In any event, the signed minutes of 9 September 2025 confirm the Complainant's own account of the conversation: that she was advised against relocating her family due to the inherent instability of an ongoing probation period ("she said it was unsafe because I might not pass my probation") That statement relates strictly to standard performance management and contains no nexus whatsoever to the protected ground of race.

In the case of Melbury Developments v Arturs Valpetters EDA/0917, where the Labour Court, while examining the circumstances in which the probative burden of proof operates stated that a 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.” It added that “…the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Complainant has not elaborated or provided any facts on credible evidence to establish how any alleged less favourable treatment relates to her race. As outlined in in In Margetts v Graham Anthony & Company Limited, EDA038,

‘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’, or in this instance, the fact that the Complainant is ‘of different race, colour, nationality or ethnic or national origins’ and failed her probation, does not automatically establish a case of discrimination.

The complainant has provided no evidence of discrimination. Only when she has discharged this burden to the satisfaction of an Adjudication Officer does the burden shift to the Respondent to rebut the inference of discrimination raised. She has failed to establish a prima facie case of discrimination and as such the burden does not shift.

Without prejudice to the foregoing arguments, the Respondent will now respond to the substantive complaint made to demonstrate that no case of discrimination exists, should the WRC determine that the burden of proof should shift to the Respondent.

In her Employment Equality complaint [CA-00073953-001], the Complainant has alleged that she was subject to discrimination on the grounds of race by way of victimisation. In her claim form, she further alleges that she was subject to racial harassment by her line managers. She states that she raised a formal complaint on 4 February 2025 which was not conducted in a timely or effective manner. She also alleges that the same line manager who subject her to racial harassment advised her that she failed her probation without following any due process.

The Respondent refutes that these circumstances amount to discrimination under the Employment Equality Act and asserts that they do not substantiate an allegation of victimisation nor discriminatory treatment, as no causal link has been evidenced regarding these concerns and the employee failing her probation period.

The Respondent is limited in its ability to provide a substantive defence regarding any allegation of discriminatory treatment during the management of the employee’s probationary period, as this matter remains under internal investigation.

However, the Respondent asserts that the Complainant was and continues to be afforded a comprehensive, fair, and objective review of her concerns. The Respondent adhered rigorously to its internal procedures, appointing an independent and impartial investigator to conduct the formal process. The investigator has met and continues to meet extensively with the Complainant, the Respondent and all relevant witnesses.

This robust investigation continues to incorporate the principles of natural justice and constitutional fairness. The Complainant was provided with all requisite procedural protections, including the right to be accompanied by a representative, the appointment of an unbiased investigator, the right to respond to the Respondent’s statements, as well as witness statements.

Throughout the process, the Complainant’s Union Representative has been provided with frequent and transparent updates from the Respondent organisation. This included communication regarding an anticipated delay in process resulting from the Complainant’s Representative requesting that an external investigator be appointed.

Paradoxically, the Complainant bypassed this ongoing internal process and proceeded to lodge her complaint with the Workplace Relations Commission on 31 July 2025. She did so prematurely, prior to the completion of the investigation, and with full knowledge of the legitimate, objective reasons for the temporary delay.

To note, section 14A (2) of the Employment Equality Act provides a defence for an employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects:

“…(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable — (a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and (b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.”.

The Respondent asserts that it is prejudiced in its ability to fully establish a defence under s14A(2) with respect to the incident of 31 January 2025 as the Complainant submit her claim to the WRC prematurely, and before the investigation regarding this incident could be concluded.

Notwithstanding the above, the Respondent refers to the Labour Court deliberation in

Limerick City Council v Martin Mannering EDA 1210where it stated:

“the focus should be on whether or not the Respondent had in place adequate policies and procedures intended to make all employees aware that harassment on any of the discriminatory grounds is unacceptable and will not be tolerated by the Respondent”.

The Respondent submits that they have in place a Dignity at Work policy which is agreed with the Union and provides procedures for handling complaints of harassment. The Respondent ensures that any concerns are addressed in line with the relevant policies and procedures applicable to the specific matter raised. The Respondent had in place adequate policies and procedures intended to make all employees aware that harassment on any of the discriminatory grounds is unacceptable and will not be tolerated by the Respondent. Employees are provided with and expected to familiarise themselves with such policies, as per s32 their contracts of employment. The issue identified by the Complainant was subject to the full application of those policies during the cognisable period of the claim.

The Respondent notes that the WRC claim form also alleges discrimination in victimisation. Section 74(2) of the Employment Equality Act 1998 deal with this. For an employee to succeed in a victimisation claim the employee must prove that they experienced adverse treatment by the Respondent and that the adverse treatment was solely or mainly because she partook in any of the above actions listed a-g.

Nowhere in the Complainant’s claim form has she alleged that she took part in a protected act and that as a result she was subject to adverse treatment. It is common case that the Complainant submit a grievance relating to dignity at working February 2025. However, the Complainant has not alleged at any point that as a result of raising such concerns, she was subject to adverse treatment. Further, the Complainant has not specified any instant of adverse treatment.

Therefore, it is the Respondent’s position that the Complainant has failed to particularise her claim of victimisation, and the Respondent is thereby prejudiced in its defence of this aspect of the complaint.

If it is the Complainant’s contention that breaches under the Employment Equality Act did occur, the Respondent would respectfully request that the exact nature of the discriminationbeclarified.Itisnotsatisfactorytoallegeacontraventionintheabsenceof any detail. Without such details, the Respondent is prejudiced in its defence of these allegedcomplaintsasithasbeendeniedareasonableopportunitytoinvestigate.

As stated in ISS Limited v Zhivko Mitsov (and 3 others), DWT1159 the evidential burden is on the Complainant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. The Labour Court stated in this case that, as a matter of basic fairness, the Complainant should be required to do so with sufficient particularity as to allow the Respondent to know, in broad terms, thenatureofthecomplaintandthecasethattheyareexpectedtomeet.

The Labour Court stated that this had been pointed out by Lord Devlin in Bratty v Attorney General for Northern Ireland [1963] A.C. 386 where the evidence adduced is sufficient to “suggest a reasonable possibility”.

Similarly in Nolan Transport v Jakonis Antanas DWT 1117  and in Erac Ireland Limited and Eddie Murphy DWT1583 the Labour Court makes clear that the complainant has a duty to particularise the claim she is making. As stated by the Labour Court in Nolan Transport v Jakonis Antanas DWT 1117:

“The normal rule in civil proceedings is that the person bringing proceedings bears the burden of proving every element of the wrong upon which their claim is founded. It is also the normal rule that the party who bears the legal burden of proof also bears the evidential burden. The effect of s.25(4) of the Act is to shift the burden to the Respondent in cases where records in the statutory form were not maintained. Thus, a form of rebuttable presumption of non-compliance arises in such cases. But the burden of proof must be applied in a way that conforms to the requirements of natural justice and the right of the Respondent to mount a defence. This suggests that, at a minimum, the Respondent must know, with reasonable clarity, what it is expected to rebut.

The burden on a Respondent of proving compliance with the Act arises in proceedings in which a complaint of non-compliance is made. It is clear from s.27(2) of the Act that the jurisdiction of the Rights Commissioner is invoked by an aggrieved worker, or his or her trade union, by presenting a complaint to a Rights Commissioner that his or her employer has contravened a relevant provision of the Act in relation to him or her. The subsection goes on to provide that where a complaint is made the Rights Commissioner shall give the parties an opportunity to be heard and to present to the commissioner any evidence relevant to the complaint.

This suggests that the evidential burden is on the Complainant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that, as a matter of basic fairness, the Complainant should be required to do so with sufficient particularity as to allow the Respondent to know, in broad terms, the nature of the complaint and the case which they are expected to meet.”

The Respondent therefore asserts that it is prejudiced in its defence of this claim as the Complainant has not produced a definitive position nor any detail as to her claim for victimisation.

In the first instance, this claim is out of time.  Without prejudice to that, no substantive argument can be forwarded regarding any allegation of discrimination during the Complainant’s probationary period while this exact claim is being considered via an internal process, as to do so would prejudice the outcome of such a process.

 Further the Complainant has failed to particularise her claim on victimisation.

The burden of proof rests with the Complainant to show that she was discriminated against on the grounds of race. It is the Respondents position that the Complainant has failed to do so, as she has failed to state an instance of less favourable treatment within the cognisable period, failed to name an appropriate comparator, and has failed to establish a causal link between any alleged less favourable treatment and her race.

Further case law which considers the burden of establishing a prima facie case of discrimination by the Complainant before the Respondent has a case to answer is the case of Cork City Council v Kieran McCarthy, Determination No. EDA0821, where it is stated that the language used within section 85A “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.”

Support for the hearing of stand-alone jurisdictional issues at the commencement of a hearing is to be found in the decision of the Supreme Court in Brannigan v. The Equality Tribunal and County Louth VEC [2016] IESC 40wherein McKechnie J stated:

“It is both a trite and historical principle of law that a creature of statute must live by the statute. Its jurisdiction is found solely within the provisions of the enabling Act. It has no inherent capacity, unlike, say, that of a constitutional court. It is therefore bound by what has been conferred on it. It has no further competence, and it cannot create, add to or enlarge the jurisdiction so vested in it.”

The Supreme Court further stated that “does not conduct investigations proprio motu into discrimination which has not been the subject of a statutory referral to the Court. Rather, it determines what lawfully has been referred to it with a view to providing redress to the Appellant applicant for any discrimination as found. The Court cannot as such freelance its inquiry”.

It is on this basis the Respondent respectively submits that as the Complainant has not provided facts from which a prima facie case of discrimination can be established, that there is no case to answer by the Respondent and accordingly the matter should be dismissed.

There were three preliminary issues in this case.

The first was that the episode listed on the original complaint form fell just (one day) outside the cognisable period of six months for making a complaint. The issue then is whether there is reasonable cause (as legally defined for this purpose) to extend the time limits.

The second was whether, as asserted in the complainant’s pre-hearing written submission, there had been further breaches of the Act which occurred within the cognisable period and which, despite not having been referred to on the complaint form, represented prima facie breaches of the Act.

Connected to the first point, the third issue was whether the alleged breach that occurred on January 31st could be said to represent a prima facie breach of the Act, subject of course to a positive response on that first point on extending the time limits.

Turning to the first issue, while this has been expressed as being ‘one day’ outside the time limits, strictly speaking this is not a precise way to describe it, as it is anywhere from six months and one day outside the time limits, (had it been made on the first day on which it was possible to do so) all the way down to just one day.

This is important, as there may have been phases of the six month period during which there was reasonable explanation excusing not having made a complaint, and yet sufficient time remained to do so, or it may not have been possible for whatever good reason not to do so until the last week, say of the six months, and some overwhelming reason prevent it for being made.

The simple point being made here is that the entire six month period must be considered, and not just the final day for submitting a complaint, as well as the reason why the complaint was not made.

The explanation offered for the late complaint was that the issues involved were being handled through the industrial relations processes. Both parties have set out the chronology of events above, the respondent in rather more detail.

Essentially the complainant submitted a grievance on February 4th, 2025, with some additional material on March 21st.

Her union was active on her behalf between February and May and there was a dispute about who would conduct a grievance investigation. (She returned to work in May).

Eventually on July 25th, the respondent rejected the suggestion of an external investigator and the complaint to the WRC followed some six days later, citing the meeting of January 31st as the date of the last incident of discrimination.

A number of things are clear from this, but most critically it appears that the triggering event was the decision on who would conduct the investigation.  However, equally critical in this is that there is no discernible reason why the complaint could not have been made at any time after January 31st to bring it within the cognisable period.

Nothing happened as a result of the decision by the respondent on July 25th, that opened up a door for the making of a complaint that had not been open before that and this is decisive.

The conduct of procedures under workplace policies is, in general, an entirely separate matter to a complaint under an employment rights statute.

While it may be desirable in general to exhaust those procedures, a person contemplating a reference to the WRC must be aware that the time limits are expressed in the statutes and are not merely discretionary or administrative guidelines.

It will not provide an explanation sufficient to meet the principles formulated by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carrol Determination DWT 0338 and in other cases and may be summarised as the ‘explain and excuse’ test.

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the  circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would    have initiated the claim in time.

 The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

This is replicated above in the respondent submission but I do so again for the convenience of the reader and also to draw attention to the following.

Hence there must be a causal link between the circumstances cited and the delay and the Complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”     

This captures the essence of the test. Was there anything in the period of delay which, had they ‘not been present’ would have enabled the complainant to submit her complaint in time? As noted above, I do not discern any, at any stage on the period when it might have been referred and therefore the complainant has not met the bar set by the ‘explain and excuse’ test.

The Labour Court subsequently endorsed this in Salesforce.com v Leech EDA1615 held as follows:

   “It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.

Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time.   Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the   delay ceased to operate before the complaint was presented, that may undermine a    claim that those factors were the actual cause of the delay.

Finally, while the established test imposes a relatively low threshold of reasonableness on an   applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

Returning to the second of the preliminary issues above which was whether, as asserted in the complainant’s submission, there had been further breaches of the Act which occurred within the cognisable period and which, despite not having been referred to on the complaint form represented prima facie breaches of the Act.

In oral submissions to the hearing it was confirmed that there had not been.

The third issue was whether the alleged breach that occurred on January 31st could be said to represent a prima facie breach of the Act, subject of course to a positive response to that first point on extending the time limits.

While this is now a redundant point as the application for an extension of time is not being upheld I will address it for the sake of completeness. As is clear from the narrative above, the core issue in delaying the conclusion of the complainant’s probation, and her ultimate failure to do so was her failure to achieve the required standard.

While no oral evidence was heard on this aspect of the matter, the connection to the complained of breach of the Employment Equality Act is a comment alleged to have been made by one of the complainant’s managers in May 2024.

No action was taken on this comment until the complainant submitted her grievance on February 4th, 2025, some nine months later. Admittedly, this was on the basis of the decision on January 31st regarding her probation, which decision she attributes to the remark allegedly made some eight months earlier but it creates a major obstacle for a complainant trying to link events at this distance apart from each other.

The complainant opted for oral submissions only on whether this might represent a prima facie case.

It was submitted that the complainant had criticisms about how her ‘Supportive Learning Plan,’ a type of performance improvement tool, put in place in September was managed. She claims that she was not given a proper opportunity to respond to its conclusions before the decision was made on January 31st.

However, there was no evidence in the written or oral submissions (noting again that formal evidence was not heard at the complainant’s request) that any of these concerns related to alleged breaches of the Equality Acts, or incidents of less favourable treatment apart from the conversation which allegedly took place the previous May.

There was no indication in the oral submission by the complainant’s representative that any evidence would be offered beyond a ‘belief’ held by the complainant that it was a factor.

On the basis of my findings on the time limits it is not necessary to make a decision on this, although in passing it is worth stating that a ‘belief’ by a complainant of itself and unsupported by any evidence is unlikely to meet the threshold for a prima facie case. The case law is clear that there must be facts established in evidence from which a breach of the Act may be inferred.

In conclusion on the three preliminary points I find as follows.

I find that the complainant has not met the requirements of the ‘Explain and Excuse’ test to justify extension of the time limits. 

It was established in the course of the hearing there had been no further alleged  breaches of the Act which occurred within the cognisable period. 

Accordingly I am not required to make any finding on the third point, which was, in any event, conditional on a finding favourable to the complainant on the previous points.

Complaint CA-00073953-001 has not been made within the time limits and is not upheld.

Complaint CA-00073953-001 has not been made within the time limits and is not upheld.

Time Limits