ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00053369

Parties:

	Complainant	Respondent
Parties	Vasantkumar Barot	Madhu Foods Limited Guru Indian Cuisine

	Complainant	Respondent
Parties	Vasantkumar Barot	Madhu Foods Limited trading as Guru Indian Cuisine

Representatives

Sylwia Nowakowska Migrant Rights Centre Ireland

No show

Complaint(s):

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00065116-001	31/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00065116-003	31/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00065116-004	31/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00065116-005	31/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00065116-006	31/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00065116-007	31/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00065116-008	31/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00065116-009	31/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00065116-010	31/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00065116-012	31/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00066516-001	07/10/2024

Date of Adjudication Hearing: 09/12/2025

Workplace Relations Commission Adjudication Officer: Brian Dalton

Procedure:

In accordance with Section 41 of the Workplace Relations Act, and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 79 of the Employment Equality Acts, 1998 – 2015following the referral of the complaints to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

Based on the sworn evidence of the Complainant it is alleged that the Respondent misled him, received close to €15,000 from him to pay for a work permit, was told he would work as a Commis Chef for 40 hours a week and earn about €570 a week.

The Complainant borrowed funds from his family and friends to pay for the work permit.

The Complainant arrived in Ireland on our about mid-March 2023.

It is alleged that the Complainant was directed to work on a farm owned by the Respondent from early in the morning and then would be told to work at one of the Restaurants controlled by the Respondent as follows:

· Guru Indian Cuisine 32 Park Street Dundalk Co Louth

· Guru Indian Cuisine 12 Saint Laurence Street, Drogheda, Co Louth

· Guru Indian Cuisine 3 Kildare Street, Newry, Co Down

· Guru Indian Cuisine 11 Wellington Place, Belfast, Co Antrim

It is alleged that he worked on average more than 90 hours a week. He received irregular payments from his employer in cash or by electronic funds transfer in amounts ranging from €1000 to €99. It is alleged that he received €11,6000 in total between the 14th of March 2023 until the 26th of March 2024. His average gross rate per hour it is alleged was €2.96 in 2023 and €1.61 in 2024.

The Respondent Madhu Food Limited trades as Guru Indian Cuisine.

The following are the details on CORE:

682779

Reg. Name

MADHU FOODS LIMITED

Type

LTD - Private Company Limited by Shares

Status

Normal

Effective Date

24/11/2020

Registered on

24/11/2020

Next Annual Return

24/05/2023

Reg. Address

32 PARK STREET, DUNDALK CO. LOUTH, DUNDALK, LOUTH, A91HC42, IRELAND.

Notification of the hearing was served at the Registered Address.

The Respondent failed to attend on two separate dates:

· 9th of December 2025

· 21st August 2025

Summary of Complainant’s Case:

The Complainant alleges that he was exploited in a most egregious manner by his employer. He paid his employer a large sum of money that he had to borrow on the promise that he would have a good job. In fact, what occurred was a deception where he was deceived about the purpose of the upfront payment. He was then led to believe that he continued to owe the Respondent money based on the false assertions that the work permit payments were far greater than they actually are and that he had to pay for that permit.

In turn that led to this Complainant it is alleged working more than 90 hours a week and being moved to different restaurants and to a farm. His working day began early in the morning and ended extremely late at night into the early morning.

The terms of his contract it is alleged were never honoured and were part of a ruse to create the appearance of lawful employment. In fact, his employer engaged in egregious exploitation and fraud, using the work permit system to exploit a vulnerable immigrant. The oppressive conditions endured by him led to this Complainant running away from what amounted economic slavery, distressed and fearful about his future.

Summary of Respondent’s Case:

The Respondent failed to attend.

Findings and Conclusions:

The sister restaurants operating in the Northern Ireland appear to have ceased trading and Madhu Foods Ltd Company number NI 688337 with a registered office at Flat 3 a Kildare Street, Newry, Down, United Kingdom, has a status of dissolved.

CA-00065116-008 Terms of Employment (Information Act) 1994:

The contract issued to the Complainant is dated to commence 27th November 2022 and signed on the 29th of September 2022. The place of work is Guru Indian Cuisine, 32 Park Street, Townlands, Dundalk. The rate of pay is stated to be €576.92 a week. Sunday pay is €14.79 an hour. Normal hours of work will be 39 hours per week.

The place of work varied from what was the stated place of work to restaurants in Northern Ireland and a farm. The rate of pay was not honoured and varied from week to week. The fact is that contract was never honoured and other claims are made that reflect that reality.

I find for the Complainant; however, in the circumstances of this case, I award a nominal amount of €300 euro for a breach of the Act, as other claims made attract significant compensation for the breaches that have occurred.

CA-00066516-001 National Minimum Wage Act, 2000:

On 21/06/2024, in accordance with Section 23(4 – 6) of the NMWA, the Claimant sent a letter via registered post to the Respondent at the Company’s registered address requesting a statement of his average hourly rate of pay. The initial request could not be delivered at the registered company address. Subsequently, a letter requesting a statement of the Claimant’s average hourly rate of pay was sent to the other three restaurants on 7 August 2024, with only one being delivered to the Newry restaurant. Additionally, an email with the request for the Claimant’s statement of average hourly rate was sent to the Respondent's email address. To date, the Respondent has not provided the Claimant with a statement of his average hourly pay rate in compliance with Section 23 of the NMWA (c) Section 26(1) of the NMWA provides:

“A decision of an adjudication officer in relation to a dispute in respect of the entitlements of an employee under this Act referred to the adjudication officer under section 41 of the Workplace Relations Act 2015 may contain— (a) a direction to the employer to pay to the employee— (i) an award of arrears, being the difference between any amount paid or allowed by the employer to the employee for pay and the minimum amount the employee was entitled to be paid or allowed in accordance with this Act in respect of the period to which the dispute relates, and 10 (ii) reasonable expenses of the employee in connection with the dispute, (b) a requirement that the employer rectify, within a specified time (not being later than 42 days after the date the decision is communicated to the employer) or in a specified manner, any matter, including the payment of any amount, in respect of which the employer is in contravention of this Act, or both such direction and such requirement, as the adjudication officer considers appropriate.”

Section 24(1) of the NMWA defines a “dispute” as follows:

“For the purposes of this section, a dispute between an employee and his or her employer as to the employee’s entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee.”

The Complainant asserts that during his entire employment period, from 13/03/2023 to 04/04/2024, he did not receive payment in accordance with the NMWA. His average hourly pay rates were €2.96 and €1.61.

The Complainant notes that Section 26(1)(a)(i) of NMWA provides that an Adjudication Officer may award redress of arrears in respect of “the period to which the dispute relates.”

The Claimant respectfully asked that the Adjudication Officer follow the previous approaches of the Labour Court in Sue Ryder Foundation Ireland Ltd v Maureen Meenagh MWD051 in which redress of arrears covered the whole period of the dispute relating to underpayment of the NMW, without limitation, except that of the statute of limitations on contractual debts. The Claimant is requesting an award of unpaid wages owed in accordance with the minimum entitlement stipulated under the NMWA for the period relevant to the dispute, amounting to €46,105.60.

The Complainant is alleging that he worked above 90 hours a week. There are no records to support that claim other than oral evidence. The Respondent carries the burden to keep records. However, the Complainant also must have some evidential obligation and at minimum that should be some corroborating facts. While the employee gave credible evidence that he worked long hours, with an average weekly well more than 48 hours, in the absence of any records, and noting the employer’s obligation to keeps records, I have decided that the claim for minimum wage is assessed on the statutory maximum of 48 hours per week. The breach for working above 48 hours a week I will determine under the Organisation Working Time Act 1997 as amended.

The complaint is well founded and order the employer to pay arrears of €24,5000 an amount I deem to be appropriate.

CA-00065116-007 Excessive Working Hours:

The Complainant has given credible evidence that he has worked significantly more than 48 hours per week. Section 27(3) provides for the following:

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

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

In the absence of any records and allowing for the requirement to make a proportionate award that is just and equitable having regard to all the circumstances, I determine the complaint to be well founded, and I award €15,000 in compensation for being required to work significantly over and above the statutory maximum average weekly hours. I am aware that that this amount does not reflect fully the claim before me; however, based solely on oral evidence and without any corroborating evidence, it is a substantial award that reflects the seriousness of the breach.

CA-00065116-004 Daily Rest Periods between shifts:

According to the Complainant’s working hours he did not receive 11 consecutive hours of rest in each period of 24 hours on many occasions.

The Respondent did not appear to have kept a daily record of rest breaks taken and Section 12 of the OWTA provides:

“An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes. (2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

There are no records before me; however, the Complainant has provided credible evidence. I find the complaint well founded and note the seriousness of the breach. I order the Respondent to pay compensation of €10,000 to the Complainant for the breach.

CA-00065116-005rest breaks during the shift:

The Complainant stated that he did not receive proper rest breaks during the duration of his employment. The Respondent did not appear to have kept a daily record of rest breaks taken. The Complainant’s representative stated that Section 12 of the OWTA provides:

“An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes. An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection.”

The Complainant asks the Adjudicator to have regard to Von Colson & Kamann v. Land Nordrhein Westfalen [1984] ECR 1891, the Court of Justice of the European Union (“CJEU”) made it clear that where such a right is infringed, the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.

I note the seriousness of the breach and having regard to the other breaches that I have found to be well founded, and the cumulative value of awards made for breaches under the Act, a balance is required to be struck between the economic value of each breach and the requirement to apply the Van Coulson principles. I determine that the complaint is well founded and order the Respondent to pay compensation of €5000.

CA-00065116-06 Failure to Provide proper weekly rest breaks:

The Act requires that in each period of 7 days the worker should receive at least a rest period of 24 hours. I accept the Complainant’s evidence that he worked 7 days a week and worked excessive hours. I determine that the complaint is well founded and order the Respondent to pay compensation of €5000

CA- 00065116-001 Sunday Premium Payment:

This complaint is limited to the statutory period of 6 months. The Complainant is claiming 33% uplift. The Complainant has provided relevant comparators for agricultural workers. The Complainant states that he worked 12hour shifts on a total of 13 Sundays during the cognisable period and that amount owing based on his contract of employment hourly rate is €58.56 per 12 h12-hourft and amounting to €761.28. The complaint is well founded, and I order the Respondent to pay compensation amounting to €761.28.

CA-00065116-012 Public Holiday Entitlement:

The Complainant did not receive his Public Holiday entitlement, 3 public holidays that fell in February, March and April. The Complainant states that he was working 14.5 hours for each of these date. I have awarded an amount for excessive hours. The contractual hourly rate of pay he claims is €14.79 and based on oral evidence and the absence of any record I limit his hours to 12 hours per shift. The complaint is well founded. I assess compensation as follows 36 hours x €14.79=€532.44 and order the Respondent to pay this amount in compensation.

CA-00065116-003 Annual Leave Entitlement:

The Complainant received no annual leave. The Complainant stated that he worked 5105 hours. His last day of employment was 4th April 2024, and he commenced his employment on the 14th of March 2023 approximately 55 weeks. The maximum hours he should have worked was 48 hours per week. As there are no records open to this tribunal and I have already made an award for excessive working hours amounting to €15,000, I calculate holidays based on 48 hours x 55 weeks=2640 hours and at 8% of these at €14.79 an hour=211 hours x €14.79=€3120.

I concur with the Complainant’s representative that the time period for holidays in these circumstances runs from the date of cessation of the employment based on CJEU jurisprudence and statutory annual leave not given accrues over the whole period of employment. That must be so as the directive would be undermined if such practices were rewarded by limiting them to blocks of 6 months based on national statutory limits. EU law cannot be interpreted restrictively and therefore time runs from the cessation of employment in these circumstances.

I note the CJEU decision in King v Sash Windows (In Case C‑214/16, REQUEST for a preliminary ruling under Article 267 TFEU, from the Court of Appeal (England & Wales) (Civil Division), made by decision of 30 March 2016, received at the Court on 18 April 2016, in the proceedings Conley King v The Sash Window Workshop Ltd, Richard Dollar,)

First, according to the Court’s settled case-law, the right to paid annual leave cannot be interpreted restrictively (see judgment of 22 April 2010 Zentralbetriebsrat der Landeskrankenhäuser Tirols, C‑486/08, EU:C:2010:215, paragraph 29). Thus, any derogation from the European Union system for the organisation of working time put in place by Directive 2003/88 must be interpreted in such a way that its scope is limited to what is strictly necessary in order to safeguard the interests which that derogation protects (see, to that effect, judgment of 14 October 2010, Union syndicale Solidaires Isère, C‑428/09, EU:C:2010:612, paragraph 40 and the case-law cited).

59 In circumstances such as those at issue in the main proceedings, protection of the employer’s interests does not seem strictly necessary and, accordingly, does not seem to justify derogation from a worker’s entitlement to paid annual leave.

60 It must be noted that the assessment of the right of a worker, such as Mr King, to paid annual leave is not connected to a situation in which his employer was faced with periods of his absence which, as with long-term sickness absence, would have led to difficulties in the organisation of work. On the contrary, the employer was able to benefit, until Mr King retired, from the fact that he did not interrupt his professional activity in its service in order to take paid annual leave.

61 Second, even if it were proved, the fact that Sash WW considered, wrongly, that Mr King was not entitled to paid annual leave is irrelevant. Indeed, it is for the employer to seek all information regarding his obligations in that regard.

62 Against that background, as is clear from paragraph 34 of the present judgment, the very existence of the right to paid annual leave cannot be subject to any preconditions whatsoever, that right being conferred directly on the worker by Directive 2003/88. Thus, as regards the case in the main proceedings, it is irrelevant whether or not, over the years, Mr King made requests for paid annual leave (see, to that effect, judgment of 12 June 2014, Bollacke, C‑118/13, EU:C:2014:1755, paragraphs 27 and 28).

63 It follows from the above that, unlike in a situation of accumulation of entitlement to paid annual leave by a worker who was unfit for work due to sickness, an employer that does not allow a worker to exercise his right to paid annual leave must bear the consequences.

64 Third, in such circumstances, in the absence of any national statutory or collective provision establishing a limit to the carry-over of leave in accordance with the requirements of EU law (see, to that effect, judgments of 22 November 2011, KHS, C‑214/10, EU:C:2011:761 and of 3 May 2012, Neidel, C‑337/10, EU:C:2012:263), the European Union system for the organisation of working time put in place by Directive 2003/88 may not be interpreted restrictively. Indeed, if it were to be accepted, in that context, that the worker’s acquired entitlement to paid annual leave could be extinguished, that would amount to validating conduct by which an employer was unjustly enriched to the detriment of the very purpose of that directive, which is that there should be due regard for workers’ health.

65 It follows from all the foregoing considerations that the answer to the second to fifth questions is that Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave.

In Chief Constable of the Police Services of Northern Ireland and Northern Ireland Policing Board v Alexander Agnew and others [2019] NICA 32 stated at paragraph 22 when citing Sash Window Workshop Lt v King [2018] IRLR 142 that the right to paid annual leave is expressly set out in Article 31(2) of the Charter, which Article 6(1) TEU recognises as having the same legal value as the Treaties.

I note that at a paragraph 24 the Northern Ireland Court of Appeal identified key questions already addressed in Sash Windows:

24 In those circumstances, the Court of Appeal of England and Wales (Civil Division) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

(1) If there is a dispute between a worker and employer as to whether the worker is entitled to annual leave with pay pursuant to Article 7 of Directive 2003/88, is it compatible with EU law, and in particular the principle of effective remedy, if the worker has to take leave first before being able to establish whether he is entitled to be paid?

(2) If the worker does not take all or some of the annual leave to which he is entitled in the leave year when any right should be exercised, in circumstances where he would have done so but for the fact that the employer refuses to pay him for any period of leave he takes, can the worker claim that he is prevented from exercising his right to paid leave such that the right carries over until he has the opportunity to exercise it?

(3) If the right carries over, does it do so indefinitely or is there a limited period for exercising the carried over right by analogy with the limitations imposed where the worker is unable to exercise the right to leave in the relevant leave year because of sickness?

(4) If there is no statutory or contractual provision specifying a carry-over period, is the court obliged to impose a limit to the carry-over period in order to ensure that the application of the national legislation on working time does not distort the purpose behind Article 7?

(5) If the answer to the preceding question is yes, is a period of 18 months following the end of the holiday year in which the leave accrued compatible with the right set out in Article 7 [of Directive 2003/88]?’

In relation to question 2 the Court of Appeal determined:

65 It follows from all the foregoing considerations that the answer to the second to fifth questions is that Article 7 of Directive 2003/88 must be interpreted as precluding national provisions or practices that prevent a worker from carrying over and, where appropriate, accumulating, until termination of his employment relationship, paid annual leave rights not exercised in respect of several consecutive reference periods because his employer refused to remunerate that leave.

Based on In Chief Constable of the Police Services of Northern Ireland and Northern Ireland Policing Board v Alexander Agnew and others [2019] NICA 32, and based on the Sash Windows ruling, statutory time limits must be interpreted as applying only on termination of employment and that annual leave not taken even over serval years where the employer is at fault, cannot be extinguished and accrues until the date of termination of the contract. Only on cessation of employment does the statutory time period commence.

The complaint is well founded, and I order the Respondent to pay compensation of €3120.

CA-00065116-009 Unfair Dismissals Act 1977:

It is clearly the case that Complainant meets the test that he was constructively dismissed arising from a fundamental breach in contract rights and the unreasonable conduct of his employer. The claim for financial loss. As I have compensated for financial loss and awarded for the effects of breaches under other headings linked to those contractual breaches and conduct, I have determined that the claim of total financial loss for €8049 would amount to double compensations. I find that the was constructively dismissed. The Act provides for the following redress at section 7 of the Act:

i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

In the circumstances of this case, it would not be appropriate to make an award where in essence that has been provided for under the other heads of claim.

CA-00065116-010 Employment Equality Race Discrimination:

The Complainant makes out a case of alleged racial discrimination. There is no evidence presented at this hearing other than the oral evidence of the Complainant.

The legislation details a requirement for the complainant to make out a prima facie case that raises the presumption of discrimination.

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 Complainant alleges that different nationalities worked in the restaurants and states he suffered significantly harsher treatment than the Irish citizen because of nationality, which is inextricably linked to his immigration status.

Jurisprudence has clarified that the significance of the facts are important to determine if the complainant has met the test as detailed at section 85A. The Labour Court in Valpeters v Melpury Developments Limited [2010] 21 ELR 64 stated:

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

The Court also stated:

“Knowledge of how the complainant's fellow workers were treated is not exclusively or almost exclusively within the knowledge of the respondent. Nor could it be said that it is peculiarly within the range of respondent's capacity of proof. It is also plainly within the knowledge of those other workers. The complainant could have sought to ascertain from those workers if they were treated as sub-contractors or as employees. If necessary, those workers could have been required to attend at the hearing and testify as to how they were treated.

For these reasons the Court cannot accept that the peculiar knowledge principle can avail the complainant so as to relieve him of the obligation to prove the primary facts upon which he relies in accordance with s.85A of the Act.”

No evidence to support the claim other than the Complainant’s account has been given at the hearing, no witnesses have been requested to attend at the hearing to corroborate that claim. While I can appreciate the depth of feeling regarding how this Complainant was treated; the statutory requirement is clear, and that requirement has not been met based on the facts presented at the hearing. I determine that they don’t meet the required standard of significance that in turn would require the Respondent to rebut an inference of or presumption of racial discrimination.

There is no question that the Complainant was exploited. Several breaches relating to this exploitation have been fairly dealt with under other statutory headings. A claim under the Employment Equality Act must meet the prima facie test and in this instance it has not. In a case like this where facts overlay and are similar or related for each separate claim, a tribunal will have regard to the cumulative awards, to ensure that double compensation does not occur and to ensure that the awards are proportionate having regard to the duration of the employment and the breaches.

Harassment:

The Complainant states that the Respondent only provided him with a copy of his contract in English and blatantly ignored virtually every obligation it owed to him. Considering this fact, it is alleged that he has established a prima facie case of harassment, discrimination and less favourable treatment on the ground of race. In addition, he was threatened by the Respondent to revoke his work permit .

On the facts the Complainant was harassed see section 14 A:

7) (a) In this section—

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

I note that in Employment Equality Law 2nd ed (Bolger, Bruton and Kimber) Round Hall Press the scope of harassment is defined and under the Act what constitutes harassment, importantly it can be a single event.

It is important to remember that the scope of harassment on a protected ground is an act which subjects a person to unwanted conduct on any of the protected discriminatory grounds, for example, sexual harassment, religious harassment or racial harassment. The Employment Equality Acts do not apply to a generalised bullying or harassment which has no link to the discriminatory grounds. In addition, the definition of bullying which has been accepted by the Supreme Court and High Court refers to “repeated inappropriate behaviour” and specifically excludes a single event. There is no similar requirement in the definition of harassment or sexual harassment in the Employment Equality Acts. Therefore, a single complaint of harassment or sexual harassment can breach the Acts.

Harassment Free Standing Complaint:

At Chapter 12.22 the authors state that harassment is actionable per se and it does not require a comparator:

In spite of contextualising harassment and sexual harassment as discrimination in the Directives, it is clear from the definitions of both that there is no requirement to locate a comparator to prove either harassment or sexual harassment. Indeed, it has been very significantly recognised by the High Court of England and Wales that harassment within European law is a free-standing ground of complaint, distinct from that of discrimination. Therefore, even if arguments were made that the perpetrator of the harassment would have behaved in the same manner towards a male employee as he did towards a female employee, such arguments would be irrelevant as there is no requirement to show less favourable treatment. This is tantamount to the recognition of harassment and sexual harassment being actionable per se and broadens the circumstances in which harassment and sexual harassment can arise and establishes them as free-standing causes of action within European and Irish law. The express recognition of sexual harassment as a cause of action carries the potential to bring the hostile environment type of harassment beyond harassment on grounds of gender so as to protect female employees from degrading treatment within the workplace, such as being given the most menial of tasks

I note that the authors reference Irish Case Law as follows:

Prior to the transposition of the Directives in the UK, the treatment had to entail less favourable treatment on a protected ground in order to amount to harassment (s.1(1), Sex Discrimination Act 1975). For example, in Stewart v Cleveland Guest (Engineering) Ltd [1994] I.R.L.R. 440 (EAT), where it was held that a woman could not complain about pornographic displays at the workplace because a hypothetical man might also have complained. Similar arguments succeeded in an Irish case where discrimination due to sexual orientation was found not to constitute gender discrimination as a man would have been treated in the same way. See Brookfield Leisure Centre Ltd v A Worker [1994] E.L.R. 79.

However, in EOC v Secretary of State for Trade and Industry [2007] EWHC (Admin) 483; [2007] I.R.L.R. 327 at 332, the High Court determined that:

63. I am satisfied that:

i)S4A(i)(a) should be recast so as to eliminate the issue of causation and to facilitate the claims which may be capable of being made as referred to in paragraphs 29 and 36-7 above.

ii)S3A should be recast so as to eliminate the statutory requirement for a comparator who is not pregnant or who is not on maternity leave.

iii)S6A should be recast so as to provide that claims which are permitted by virtue of Denda and Sass should not be excluded.

64. I propose to deliver this judgment without making an order at this stage in respect of the relevant sections and/or the Regulations which led to them, but to give the Defendant the opportunity to consider the effect of my conclusions. I shall hear Counsel on the form of order.

The abstract provides a concise summary of the case made out and held.

The claimant commission applied for judicial review of the Employment Equality (Sex Discrimination) Regulations 2005 introduced by the defendant secretary of state.

The Regulations had made amendments to the Sex Discrimination Act 1975 in order to implement Directive 2002/73.

The commission argued that the amendments did not properly implement the Directive because (1) the new s.4A(1) of the Act impermissibly imported causation into the concept of harassment by the words "on the grounds of her sex"; (2) the new s.4A(1) wrongly required that the unwanted conduct had to be by reason of, or on the ground of, the complainant's sex; (3) the new s.4A(2) inappropriately imported an objective test into the definition of harassment; (4) they had failed to introduce liability on employers for discrimination by third parties; (5) they had impermissibly introduced the requirement for a comparator for the purpose of establishing discrimination on grounds of pregnancy, and that as it was not intended that there would still be a remedy for a woman complaining of discrimination by reference to pregnancy or maternity leave under s.1 of the Act in parallel with the new right under s.3A of the Act, the new section would offend against the principle of regression because it would reduce the protection previously available; (6) the new s.6A(7) excluded a claim for discrimination during compulsory maternity leave that the complainant had been deprived of a discretionary bonus and s.6A(3) and s.6A(4) placed a substantial limit on discrimination claims that could be made in respect of the additional maternity leave period.

Held

Application granted.

(1) It was the court's duty to construe statutes and regulations passed by Member States so as to render them compliant with a relevant Directive.

I am persuaded by that case law.

I am brought back to the fact that the breaches complained about have been considered under other headings and in most cases significant awards made, harassment per se when proven requires separate compensation. I accept that Harassment is a stand-alone claim and as a prima facie case has been made out on the documentary evidence opened and the oral evidence given at the hearing, an inference or presumption of discrimination has been established where it maybe assumed that the Complainant was harassed because of his race. As that presumption has not been rebutted, I order the Respondent to pay €15,000 compensation for the act of harassment.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

CA-00065116-008 Terms of Employment (Information Act) 1994:

CA-00066516-001 National Minimum Wage Act, 2000:

The Complainant is alleging that he worked above 90 hours a week. There are no records to support that claim other than oral evidence. The Respondent carries the burden to keep records. However, the Complainant also must have some evidential obligation and at minimum that should be some corroborating facts. While the employee gave credible evidence that he worked long hours, with an average weekly well more than 48 hours, in the absence of any records, and noting the employer’s obligation to keeps records, I have decided that claim for minimum wage is assessed on the statutory maximum of 48 hours per week. The breach for working above 48 hours a week I will determine under the Organisation Working Time Act 1997 as amended.

The complaint is well founded and order the employer to pay arrears of €24,5000 an amount I deem to be appropriate.

CA-00065116-007 Excessive Working Hours:

The Complainant has given credible evidence that he has worked significantly more than 48 hours per week. Section 27(3) provides for the following:

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the relevant provision,

In the absence of any records and allowing for the requirement to make a proportionate award that is just and equitable, having regard to all the circumstances, I determine the complaint to be well founded, and I award €15,000 in compensation for being required to work significantly over and above the statutory maximum average weekly hours. I am aware that that this amount does not reflect fully the claim before me; however, based solely on oral evidence without any corroborating evidence, it is a substantial award that reflects the seriousness of the breach.

CA-00065116-004 Daily Rest Periods between shifts:

According to the Complainant he did not receive 11 consecutive hours of rest in each period of 24 hours on many occasions.

The Respondent did not appear to have kept a daily record of rest breaks taken and Section 12 of the OWTA provides:

CA-00065116-005rest breaks during the shift:

CA-00065116-06 Failure to Provide proper weekly rest breaks:

CA- 00065116-001 Sunday Premium Payment:

This complaint is limited to the statutory period of 6 months. The Complainant is claiming a 33% uplift. The Complainant has provided relevant comparators for agricultural workers. The Complainant states that he worked 12hour shifts on a total of 13 Sundays during the cognisable period and that amount owing based on his contract of employment hourly rate is €58.56 per 12-hour shift and amounting to €761.28. The complaint is well founded, and I order the Respondent to pay compensation amounting to €761.28.

CA-00065116-012 Public Holiday Entitlement:

CA-00065116-003 Annual Leave Entitlement:

The complaint is well founded, and I order the Respondent to pay compensation of €3120.

CA-00065116-009 Unfair Dismissals Act 1977:

I find that the Complainant was constructively dismissed.

I have determined that the claim of total financial loss for €8049 arising from the dismissal would amount to double compensations. The Act provides for the following redress at section 7 of the Act:

In the circumstances of this case, it would not be appropriate to make an award where in essence that has been provided for under the other heads of claim.

CA-00065116-010 Employment Equality:

Race Discrimination:

On the facts as presented I determine that they are not of sufficient significance to establish a prima facie case that gives rise to a presumption of discrimination on the ground of race. The requirement to have a comparator has not been met based on some independent evidence. Therefore, I determine that the Complainant was not discriminated against on the ground of race as the threshold required to establish a prima facie case has not been met. There is no question that the Complainant was exploited. Several breaches relating to this exploitation have been fairly dealt with under other statutory headings. A claim under Employment Equality must meet the prima facie test and in this instance it has not. In a case like this where facts overlay and are similar or related for each separate claim, a tribunal will have regard to the cumulative awards, to ensure that double compensation does not occur so that the awards are proportionate, that does not preclude an award for the effects of any discrimination in addition to loss.

Harassment:

I find that the Complainant was harassed on the ground of race.

Harassment per se when proven requires separate compensation. `it does not require a comparator. I accept that Harassment is a stand-alone claim and as a prima facie case has been made out on the documentary evidence opened and the oral evidence given at the hearing, an inference or presumption of discrimination has been established where it maybe assumed that the Complainant was harassed because of his race. As that presumption has not been rebutted, I order the Respondent to pay €15,000 compensation for the act of harassment and to the fact that it was most egregious.

Dated: 18-03-2026

Workplace Relations Commission Adjudication Officer: Brian Dalton

Key Words:

Economic Slavery-Exploitation-Deception- Cumulative Awards- Double Compensation- Dissuasive and Proportionate awards- EU Law and Holidays-Harassment-Actionable per se