Make a Complaint to the Workplace Relations Commission

Discrimination is when someone treats you worse or ‘less favourably’ than another person is, has been, or would be treated in a similar situation, because you fall under one or more ‘protected grounds’.

You can experience discrimination in four different ways: 

Direct discrimination Where someone treats you less favourably than another person in a similar situation because of a different personal characteristic or circumstance that falls under the protected grounds. 

Indirect discrimination Where a seemingly neutral system or policy disadvantages you because of a personal characteristic or circumstance that falls under the protected grounds. 

Discrimination by imputation Where someone treats you less favourably than another person in a similar situation because someone has incorrectly assumed (‘imputed’) that you fall under the protected grounds. 

Discrimination by association Where someone treats you less favourably than another person in a similar situation because of your connection, relationship or association with someone who falls under the protected grounds.

Employment Equality Acts 1998-2015 (EEA)

Where a person believes they have been discriminated against in relation to employment on the basis of one or more of the protected grounds, the relevant law is the Employment Equality Acts 1998-2015 (EEA). There are nine protected grounds under the EEA.

Equal Status Acts 2000-2018 (ESA)

Where a person believes they have been discriminated against when accessing goods and services, including, for example, shops, restaurants, accommodation or education, on the basis of one of the protected grounds the relevant law is the Equal Status Acts 2000-2018 (ESA). There are ten protected grounds under the ESA.

There are nine grounds that are protected under both the EEA and the ESA. The ESA has one additional ground. The grounds under both EEA and ESA are: Gender including:

• male or female;
• transgender; or
• non-binary.

If because of your gender you have been treated less favourably than someone of a different gender, that is discrimination. For example, where you are female and are treated less favourably than someone who is male. Civil status including:

• single;
• married;
• separated;
• divorced;
• widowed; or
• in a civil partnership.

If you have a different civil status to someone else and are treated less favourably for this reason, that is discrimination. For example, where you are divorced and are treated less favourably than someone who is married. Family status including:

• pregnant;
• a parent;
• acting parent of a child, or
• a carer of a person with a disability who requires continued care.

If you have a different family status compared to another person and are treated less favourably for this reason, that is discrimination. For example, where you are pregnant and another person is not. This example may also be covered by the gender ground. Sexual orientation including:

• heterosexual;
• homosexual; or
• bisexual.

If you are treated less favourably because you have a different sexual orientation to that of another person, that is discrimination. For example, you are bisexual and are treated less favourably than someone who is not. Age Where you are treated less favourably because you are older or younger than another person and there is no good reason for this, it is discrimination. It may not be discrimination to treat a child less favourably than an adult, some exceptions apply. Religious belief, including:

• religious background; and
• those who have no religious beliefs.

For example, it is discrimination if because a person of Jewish beliefs you are treated less favourably than someone who has Roman Catholic beliefs or who has no religious beliefs. Traveller community It is discrimination, if a member of the Traveller community is treated less favourably than someone who is not a member of the Traveller community. Race including:

• colour;
• nationality;
• ethnic origin; or
• national origin.

It is discrimination, if you are a particular colour, nationality or ethnicity and for this reason are treated less favourably than someone who is another colour, nationality or ethnicity. Disability including:

• intellectual;
• mental; or
• physical; or
• a combination of the above.

It is discrimination if you have a disability and for this reason are treated less favourably than someone who does not have a disability. See also: information about ‘reasonable accommodation’. If you are trying to access housing or accommodation, the tenth protected ground under the ESA is: Housing Assistance It is discrimination if you have applied for, or are receiving, rent supplement, housing assistance payment (HAP), or any payment under the Social Welfare Acts and for this reason are treated less favourably than someone is has not applied for, or received, such a payment.

There is no fee to take a case to the WRC.

Legal Costs

As a rule, each party is responsible for their own legal costs in the WRC. The WRC cannot order you to pay the other side’s legal costs even if you are unsuccessful against one or more parties.

Law about costs is different in gender cases

However, when bringing a case of gender discrimination to the Circuit Court, if you bring a case against the wrong person or entity, the judge may tell you to pay the other side’s legal costs. Therefore, if you are unsure about who you should bring the case against, you may wish to consider bringing the case to the WRC so you won’t have to pay the respondent’s legal costs.

Before you take a case under either the Employment Equality Acts, or the Equal Status Acts, you need to:

• Identify under which Act and which ground or grounds you have experienced unlawful treatment
• Identify which category or categories of unlawful treatment, such as discrimination or harassment, you have experienced (see “Common Terminology” below)
• Be aware of the time limits for submitting a complaint (See “What are the time limits for taking a case?” below)
• Identify the correct person or company to take a complaint against and, if your case is under the ESA, notify them of your intention to take a complaint (See “Do I need to tell the person or company that I am taking a case against them?” below)
• Using the relevant forms where necessary, gather all information and evidence to support your complaint

Employment Equality Acts

Under the EEA, you must submit a complaint to the Workplace Relations Commission (WRC) within six months of the last date of discrimination. That deadline may start from one of the following:

• the date of the most recent instance of offending conduct;
• the date on which the discriminatory actions or regime ended; or
• the date of an isolated incident.

In exceptional circumstances, the WRC can extend the time for making a complaint by another six months. This gives a total time of 12 months, although the WRC very rarely exercises this power in practice. You can find information on how to apply for an extension of time on the WRC website. Once the extension period has gone by, the WRC can no longer extend the time for bringing a claim.

Equal Status Acts (ESA)

There are a number of important deadlines to consider when planning to bring a complaint under the ESA. Under the ESA, you must tell a respondent that you intend to make a complaint about them to the WRC. You cannot take a case to the WRC under the ESA until you have contacted the respondent and given them time to reply. You have two months from the last date of discrimination to tell the respondent that you intend to make a complaint to the WRC. You should do this using a Form ES1 (See “Do I need to tell the person or company that I am taking a case against them?” below) In exceptional circumstances, the WRC may extend this period of two months in which to notify a potential respondent by another two months. This brings the total to four months. The WRC may do this only in exceptional circumstances and where it believes it is fair and reasonable to do so. Learn more about the procedure to follow when applying for an extension of time. If you receive no reply after one month or you are dissatisfied with the response you receive, you may then bring the complaint to the WRC. You should submit this type of complaint using the WRC complaint form. You must submit the complaint within six months of when the alleged discrimination took place or, in the case of multiple incidents, the last occurrence of alleged discrimination. The WRC can extend the time in which to submit a complaint from six months to 12 months if it believes there is reasonable cause to do so, although the WRC very rarely exercises this power in practice.

Ongoing discrimination

In many cases, only one act of discrimination will occur. This makes it easy to determine when the six-month time period for bringing a complaint began. However, there will also be instances where a discriminatory event is repeated over a lengthy period. A clause written into your contract of employment, for example, may result in continued discrimination. This is known as ‘ongoing discrimination’, and such a situation may be described as a ‘continuing breach’. You need to be clear about when the six-month time limit to refer a complaint begins and ends. Even where you believe there may be continuing discrimination, it is important to be cautious and bring a complaint as soon as possible to avoid missing the six-month time limit. Sometimes, it will be obvious that there is continued discrimination. It may be that the discriminatory practices or actions are still occurring when you bring a complaint. For example, an employer may have paid unequal wages to men and women who carried out ‘like work’ for a long time. They then changed their practices and began paying men and women equal wages. This means, the six-month time limit for bringing a complaint  started running from the date the change in pay was introduced. Another example is if a shopkeeper has a sign in their window saying that people with dogs, including Guide Dogs, are not allowed to enter the shop. They then remove this sign and allow people with Guide Dogs to enter. The time limit for bringing a complaint started from the day that they removed the sign. Some situations are not so clear-cut. Sometimes significant gaps will occur between discriminatory actions or practices. This makes it more difficult to determine whether there is a ‘continuing breach’. In these instances, there may be a series of separate things that are done, or not done, which result in discrimination. If so, one or more instances of discrimination may be outside the six-month time limit. But where the discrimination is sufficiently connected to discrimination that did fall within the time limit, it may be possible to consider them as part of a ‘continuum’. It is important to be cautious. Different people may have different ideas about whether or not there has been a continuing breach.

Employment Equality Act Cases

Under the EEA, there is no requirement to tell a respondent that you intend to complain about them to the WRC. You can lodge a complaint immediately with the WRC using the WRC Complaint Form. However, you may wish to contact them before lodging a complaint in order to seek out information to assist with your case.

Equal Status Act Cases

Under the ESA, you must tell a respondent that you intend to complain about them. You must do this within two months of the alleged act of discrimination. If the discrimination is still happening, you must tell them within two months of the last time it happened.

How do I notify the respondent?

You can notify the respondent using the Form ES1 provided by the WRC. You may need to prove that you have notified a respondent, by showing, for example:

• a certificate of posting; or
• proof of registered post.

Completing the ES1 Form Notification Form

Personal details You must provide your personal details on the ES1 Form. This includes your:

• name;
• address;
• a way to contact you, by email; and if possible
• phone

If your address changes, you should let the potential Respondent know as soon as it does. Specifying the category of unlawful treatment There are five categories of unlawful treatment provided in the Equal Status Act (ESA). They are:

• discrimination;
• harassment;
• sexual harassment;
• failing to provide reasonable accommodation (to a person with a disability);
• victimisation

It is important that you identify which category you claim you were subjected to. You may allege that you have been subjected to more than one category of unlawful treatment. You do this by ticking the appropriate box or boxes. Specifying the ground on which you were discriminated against Distinguishing what type of unlawful treatment, you have suffered and the ground on which you have suffered are two different steps. There are 10 grounds under the Equal Status Act (like gender or civil status) on which discrimination can be based. You must specify at least one ground on which discrimination occurred and in some circumstances you may be able to show more than one ground. The definitions provided for each ground are quite restrictive. You may also claim unlawful treatment because you have been the subject of victimisation, harassment or sexual harassment, or all three. You may also wish to identify a comparator in your ES1 Form. Providing details of the complaint You must provide details of your complaint. In your ES1 Form, you should give details about the person or people you allege have carried out the discriminatory act or practice. You should try to be as precise as possible when giving:

• dates;
• times; and
• locations

You may also provide details of witnesses, though it is not absolutely necessary to do so in the ES1 Form. Request for more information You may look for information from a potential respondent to help you decide if you should bring a complaint or to help you advance your complaint. There is a section provided in the ES1 Form for this. In this section you ask questions for the respondent to answer. For more information, please see: ‘Steps to be taken before instituting a claim’ in this document. Signature You should make sure to sign the ES1 Form and provide your details. You may need to prove that you have notified a respondent, by showing, for example:

• a certificate of posting; or
• proof of registered post.

Assistance You can get more information about the ES1 Form and the process for completing it on the WRC website. The WRC will respond to general queries and explain how the system works. WRC staff cannot help you to fill out the ES1 Form or advise you whether or not they think your complaint will be successful.

Before taking a case, you need to make sure you have the correct name of the respondent you are complaining about. If the respondent is a company, it might be known by different names. However, all companies have an official legal name so it is always a good idea to do a ‘company search’. This makes sure that the name or description of the company is accurate. You can do a free company search on the Companies Registration Office website. In some cases, an organisation or company may have a different legal name to the one they use for trading. An example of this could be a shop front might be called “Joe Bloggs the Plumber”. However, the legal name of the company is ‘JB Plumbing Limited’. It is important that you name the respondent by its company name, in this case ‘JB Plumbing Limited’. Avoid simply using its trading name, ‘Joe Bloggs the Plumber’. To use this example, you would need to list the respondent as, ‘JB Plumbing Limited trading as Joe Bloggs the Plumber’. Sometimes when doing a search on the Companies Registration Office website, it can be difficult to identify who is the appropriate person or body to send your complaint to. For example, there may be several companies with the same or similar names, so you may wish to make your complaint to more than one respondent. The organisation you want to make a complaint against may also provide confirmation of the correct name to use if it is requested from them. You can withdraw cases against incorrect respondents later, but you cannot bring a complaint against a respondent once the time to do so has passed. If you are unsure who you should bring a case against through the Workplace Relations Commission (WRC), you should name the respondents that you believe may be responsible. You should do this even if it is possible this may not turn out to be the case.

You may look for information from a potential respondent to help you decide if you should bring a complaint or to help you advance your complaint. Before posing any questions to a potential respondent, you should consider what information you need to best help you argue that you have been discriminated against. The complainant must prove or provide evidence to demonstrate that the allegation (unproven claim or statement) of discrimination they have made is likely to have actually happened. This is called the ‘burden of proof’. While you do not have to look for this information, it may help you to decide whether or not to bring a complaint. The information you get might also help you to advance your complaint. If you want to bring a complaint under the Employment Equality Acts (EEA) or the Equal Status Acts (ESA), you can:

• Take notes yourself
• Ask witnesses to give information
• Ask the respondent for any relevant information they hold

Taking notes

You should take notes about any incident that happens as soon as possible afterwards. Include the date the note was taken on the document. You may also have records of the discrimination in email or in text messages. For example, if a person sends an email query to a potential landlord and the landlord replies saying that they will not rent the property to the person because they are receiving Housing Assistance Payment (HAP), or another social welfare payment. It is important to keep these texts and emails, as they may be of assistance to the WRC when it makes its decision. This also applies to voice messages, paper documents and photographs.

Asking witnesses to give information

Where available, with their consent, you should also record the names and contact details of people who witnessed the alleged (unproven) discrimination or who knew about it. They may be able to go the hearing of the dispute to explain to the WRC what happened and why they believe you have been discriminated again.

Asking the respondent for any relevant information they hold

You can ask the respondent for any information that they have related to your case. The WRC also have two forms that may help you to gather evidence:

• Equal Status Cases: The Form ES1 used to notify the respondent of your intention to take a case has a section where you can ask questions for the respondent to answer.
• Employment Equality Cases: You can submit a Form EE2 to request information from your employer or prospective employer.

For a complaint under the Equal Status Acts, the relevant information might be written on a document from the provider of the goods or service, including, for example, on a:

• shop receipt; or
• restaurant menu.

If you are making a complaint under the Employment Equality Acts, you might use information written on documents received from an employer. This includes things like:

• a payslip;
• an official letter; or
• a contract of employment.

Public records

If you are complaining about a public body, the Freedom of Information Act 2014 gives you the right to look for and get copies of records held by public bodies. This includes documents that may relate to you personally and other public documents. We list examples of public bodies below. You can ask for information under the Freedom of Information Act 2014 at any time, either before or after submitting a complaint under the EEA and/or the ESA.

Take note of requirements

Please note, a request under the Freedom of Information Act 2014 is separate to a notification under the ESA. For more information, please see ‘Do I need to tell the person or company that I am taking a case against them?” above.

Public bodies

You may be complaining about a public body like:

• a government department;
• a local authority;
• the Health Service Executive (HSE);
• the Child and Family Agency (TUSLA);
• some universities; and
• other education institutions that are publicly funded.

Read a full list of bodies to which the Freedom of Information Act 2014 applies Reasons decisions were made Under the Freedom of Information Act 2014, you may also ask for reasons for decisions made by public bodies that affect you. Your request must be acknowledged within two weeks You can make a request under the Freedom of Information Act 2014 by email or by writing a letter. Some organisations also have forms on their websites which makes it easier and quicker to submit a request. Once you have made a request, the body to which you submitted the request must acknowledge it within two weeks. The public body should usually deal with your request within four weeks. However, they may seek to extend that time if, for example, there are many documents they need to disclose (share). If they do, they must write to you to tell you that they need an extension. They cannot extend the time for more than a further four weeks (bringing the total time period to eight weeks).

The Data Protection Act 2018

The Data Protection Act 2018 provides everyone with the legal right to access personal data (in other words, personal information) held about them. A respondent may be a data controller. For example, an employer may hold an employee’s file which holds personal information that is relevant to a potential case. In these circumstances, the employer is the data controller and the employee is the data subject. Similarly, a shop owner may have CCTV footage that shows a complainant and how an incident of alleged discrimination occurred. The shop owner is the data controller and the complainant is the data subject. If you are making a complaint, you may look for this information to help you with your complaint. You can put in a request to access information at any time and can do this in any way – in writing or verbally. These requests are the same as data access requests under the General Data Protection Regulation (GDPR). You do not need to submit two separate requests under both frameworks. Written requests provide a clear record If you submit your request in writing, this means that there is a clear record of your request. Some data controllers may have forms or a web page through which they ask people to submit requests to access data. However, they must provide other ways for you to ask for data too. You should include a copy of your identification with your request for information. The law says the person or body must respond to your request within one month. The Data Protection Commission can provide you with more information and advice.

CCTV

A discriminatory event may be recorded on CCTV. If a person is on CCTV footage, they are entitled to ask for a copy of the footage. They can get this from the person or organisation who owns or controls the CCTV, known as the ‘data controller’. This may not be the respondent. It is important to ask for CCTV footage as soon as possible.

Medical evidence

In some cases, a person may suffer physical or mental harm as a result of discrimination. In these cases, the person should go to a doctor to get a medical report of any injuries or other negative effects.

WRC forms for gathering evidence

The WRC has forms that may help you to gather evidence from the respondent. Before posing any questions to a potential respondent, you should consider what information you need to best help you argue that you have been discriminated against. While you do not have to look for this information, it may help you to decide whether or not to bring a complaint. The information you get might also help you to advance your complaint. The type of information you might ask for could be as follows:

• You might ask the respondent why they did or failed to do something relevant.
• You might ask the respondent about any relevant policies or procedures.
• You might ask the respondent for information about how other employees are treated for the purposes of comparison. However, you cannot ask for confidential information, or information about the scale or financial resources of the respondent’s business. (‘Confidential information’ means information relating to a particular individual that the individual would rather not disclose. This may be specific information about a particular employee.)
• You might ask the respondent for other information which is not confidential and which is reasonable to ask for in the circumstances.

If you are thinking about making a complaint, you may also seek more general information. For example, if a female employee believes she is the subject of pay discrimination, she may wish to know what her male colleagues in the same or similar roles are being paid. Form for Equal Status cases – ES1 For Equal Status cases, there is a section in the Form ES1 where you can ask questions for the respondent to answer, to help you decide if you should bring a complaint or to help you advance your complaint. Form for Employment Equality cases – Form EE2 Under the EEA, the Form EE2 allows you to look for other information from a potential respondent. This may help you to decide if you should make a claim, or try to advance a claim. Completing the Form EE2 Details of the respondent You should specify the name and address of the person to be questioned. Details of the complainant You should provide your own personal details in the form. You must include your:

• name;
• address; and
• contact details.

Specifying the category of unlawful treatment You must say if you are claiming against a person or organisation (usually but not necessarily your employer) because they:

• discriminated against you;
• dismissed or otherwise penalised you in a way that amounted to ‘victimisation’;
• failed to pay you equally; or
• failed to provide equal treatment (other than equal pay) in your contract of employment.

It is important that you identify which category you claim you were subjected to. You may allege that you have been subjected to more than one category of unlawful treatment. You must delete (as opposed to select) the categories which do not apply to your complaint. You should do this by drawing a line through irrelevant categories. Specifying the ground on which you were discriminated against Distinguishing what type of unlawful treatment you have suffered and the ground on which you have suffered are two different steps. There are 9 grounds under the EEA (like gender or civil status) on which discrimination can be based. You must specify, by ticking the relevant box, at least one ground on which discrimination occurred and in some circumstances you may be able to show more than one ground. The definitions provided for each ground are quite restrictive. For more information, please see: ‘What are the protected grounds?’ in this document. Circumstances giving rise to a complaint You must provide details of your complaint. It is not absolutely necessary to provide details of the witnesses to any alleged incident in the Form EE2. However, when referring to the person or people who you allege carried out the discriminatory act or practice, you should try to be as precise as possible about any:

• dates;
• times;
• locations; and
• identities

In claims under the Employment Equality Acts, particularly in claims where it is alleged that there is unequal pay, you may need to provide details of pay. You may also need to provide the names, job titles and other details of people whom you claim do similar work for a greater amount of pay. In the later section, you may provide reasons for believing that the treatment was unlawful, but you are not obliged to do so. Questions posed to all respondents The EE2 Form asks respondents:

• first, if they accept the account as set out by a complainant in the Form; and
• second, if they accept that their treatment of the complainant breached the requirements of the Employment Equality Acts.

Specific questions posed by a particular complainant The EE2 Form allows you to look for other information from a potential respondent. This may help you to decide if you should make a claim, or try to advance a claim. There is a section on the EE2 Form where you enter your wish for such information. For information on the types of information that may be useful, please see: ‘Steps to take before instituting a claim’ in this document. When you are looking for information, you should do so by asking questions relevant to your claim. You do not have to ask for material information, but it may help to decide whether or not you should bring a complaint. The respondent does not have to respond to the request for material information. ‘Material information’ Information is material if it is any of the following. Reasons for action The respondent’s reasons for doing or not doing anything that is relevant is material information. This could be in relation to any policies or procedures which are relevant or have a bearing on what they did. Treatment of others in similar positions Material information includes information about how the respondent has treated other people who are in a similar position to you. It does not include confidential information. Other reasonable requests Other information which is not confidential information and which it is reasonable for you to ask questions about in light of all of the circumstances of the case, is also material information. The type of information you might ask for could be as follows:

• You might ask the respondent for the respondent’s legal name and address
• You might ask the respondent why they did or failed to do something relevant.
• You might ask the respondent about any relevant policies or procedures.
• You might ask the respondent for information about how other employees are treated for the purposes of comparison. However, you cannot ask for confidential information, or information about the scale or financial resources of the respondent’s business.
• ‘Confidential information’ means information relating to a particular individual that the individual would rather not disclose. This may be specific information about a particular employee.
• You might ask the respondent for other information which is not confidential and which is reasonable to ask for in the circumstances.

If you are thinking about making a complaint, you may also seek more general information. For example, if a female employee believes she is the subject of pay discrimination, she may wish to know what her male colleagues in the same or similar roles are being paid. You can ask this information by submitting an EE2 Form. Signature You should make sure that you sign the EE2 Form and provide your details. Assistance You can get more information about the EE2 Form and the process for completing it on the WRC website. The WRC will respond to general queries and explain how the system works. However, the WRC staff cannot help you to fill out the EE2 Form or give you advice about whether or not your complaint will be successful. Form to reply to a request for information – EE3 The potential respondent, usually an employer, can reply to an EE2 request using an EE3 Form. They do not have to do so. However, if they fail to respond or if their replies are false or misleading, the Adjudication Officer may take this into account when deciding the outcome of the case.

Under the ESA and EEA, you may file a complaint using the WRC Complaint Form. You must do this within six months of the alleged act of discrimination. If the discrimination is still happening, you must tell them within six months of the last time it happened. For more information, please see: ‘Time limits’ in this document.

Complainant’s details

You must provide your personal details on the WRC Form. This includes your:

• name;
• address;
• a way to contact you, by email; and if possible
• phone

If your address changes, you should let the WRC know as soon as it does.

Employment and Pay Details

There is a section on Employment and Pay Details. If you are filing a complaint under the ESA, there is no need to fill in these sections.

Details of a respondent

When you are making your complaint, you must provide details of the respondent in the appropriate section. The respondent is the person, organisation, or company who you say discriminated against you. You must make sure that the name of the respondent is accurate and that you use their full legal name. The WRC cannot change the name of a respondent on a complaint form at a later date. For more information, including how to identify the correct legal name of a respondent, please see: ‘Steps to take before instituting a claim’ in this document.

Contact Details of the Respondent

If you are taking a case under the ESA there is no need to provide Employer PAYE number.

Representative’s details

If you have engaged someone to represent you, whether it be a lawyer, trade union official or some other individual, you should tick the relevant box ‘Yes’ to show that you have done so. It is important to know that the WRC does not have the legal power to direct that one party pay the costs of the other party’s representative, whether this is:

• a legal representative;
• union representative; or
• any other representative.

You do not need to have legal representation to bring a complaint to the WRC, but some parties decide to do so. The WRC is less formal than a court.

Is the employer/respondent aware of you making the complaint?

If you have notified the respondent by way of ES1 Form or EE2 Form, you should tick “yes”.

General Complaint Area

Please select “Discrimination/Equality/Equal Status”. You will be asked to select a category of complaint.

Complaint Specific Details Area

Specifying the ground on which you were discriminated against

Distinguishing what type of unlawful treatment you have suffered and the ground on which you have suffered are two different steps. There are 10 grounds under the Equal Status Act (like gender or civil status) on which discrimination can be based, while there are 9 grounds under the Employment Equality Acts. You must specify at least one ground on which discrimination occurred and in some circumstances you may be able to show more than one ground. The definitions provided for each ground are quite restrictive. For more information, please see: ‘Relevant legislation’ in this document. You should include the date that discrimination first occurred and the date the discrimination last occurred. These dates may be the same.

Specifying the category of unlawful treatment

You should select the unlawful treatment that applies to you. It is important that you identify which category you claim you were subjected to. You may allege that you have been subjected to more than one category of unlawful treatment. You do this by ticking the appropriate box or boxes. If you are taking a complaint under the ESA, you should include the date that your notified the respondent using the ES1 Form. The WRC requires you to forward a copy of the ES1 Form and proof of postage to the WRC. You should tick whether or not you received a reply to the ES1 Form. If so, you should include the date it was received by you and send a copy to the WRC.

Providing details of the complaint

You must provide details of your complaint. In your WRC Complaint Form, you should give details about the person or people you allege have carried out the discriminatory act or practice. You should try to be as precise as possible when giving:

• dates;
• times; and
• locations.

You may also provide details of witnesses, though it is not absolutely necessary to do so in the WRC Complaint Form. Practical Note – You should save or print a copy of your form before submitting to the WRC.

Mediation

Both the complainant and the respondent will be asked if you wish to refer the case for mediation. Mediation is a way to resolve disputes where a mediator tries to find common ground between the complainant and respondent.

Once you file a complaint, there are a number of stages. You will first receive a letter giving your case an adjudication reference number. The correspondence will tell you that an Adjudication Officer will be appointed in due course. The steps which follow after that are detailed below.

Mediation

Mediation is voluntary i.e. you can choose whether or not to try mediation. Mediation is less formal than adjudication (a hearing). Typically, the parties are in separate rooms in the Workplace Relations Commission (WRC). The mediator talks to the complainant first and then, having discussed what the complainant wants to achieve, talks to the respondent. The mediator then goes back and forth between the parties, trying to resolve the dispute. If the complainant and the respondent fail to reach agreement, mediation is abandoned and the matter may be sent forward for adjudication. You cannot opt for adjudication first and then mediation. The advantages of mediation include that it is less formal than adjudication. This means:

• mediation sessions often happen sooner than adjudication hearings; and
• mediation sessions are strictly confidential, so no one will know they happened.

In mediation, for example, complainants might be able to get an apology, a commitment to undergo equality training and/or the payment of compensation. The disadvantages are that no one will know about the discrimination as:

• any settlement agreement may be subject to a non-disclosure clause; and
• the mediator will not give a decision whether or not discrimination or harassment occurred. A case will only be referred for mediation where both a complainant and respondent agree it should be. Mediation is a voluntary process and either party may walk away at any stage.

If mediation is unsuccessful, it will continue to adjudication unless the complainant withdraws their complaint.

Adjudication

If a mediation does not occur or is unsuccessful, the case will then be referred to an Adjudication Officer who will investigate. Complainants and respondents will receive a letter telling them where and when the case will be heard. The Adjudication Officer will hear all of the evidence and then decide whether or not unlawful acts have occurred in breach of the Employment Equality Acts or the Equal Status Acts. It may take a while for your case to be assigned a date for hearing.

Most cases that go to the WRC are now heard in public. This means that any member of the public, including journalists, may attend and listen to what happens in the case. However, where ‘special circumstances’ exist, an Adjudication Officer has the power to direct that a hearing (or part of it) should not take place in public.

Will the decision be published?

All decisions of the WRC are published on the WRC website. When a decision is published, it will include the names of the people:

• who took the case (the complainant[s]); and
• against whom they were taking the case (the respondent[s]).

There are limited exceptions to this rule. The exceptions are detailed in section 41 of the Workplace Relations Commission Act 2015. This was amended by section 4 of the Workplace Relations (Miscellaneous Provisions) Act 2021. This may include removing the names of a complainant or respondent. ‘Special circumstances’ depend on the facts of each case, but may include the following:

• Children – Where a case involves a child.
• Disability or medical condition – Where a person involved in the complaint has a disability or medical condition, which they do not wish to be revealed.
• Sensitive issues – Cases involving issues of a sensitive nature such as sexual harassment
• Protected disclosures (‘whistleblowing’) – Cases involving a protected disclosure.
• Risk of harm – Cases which would result in a real risk of harm to someone if the hearing was held in public or if the parties were named in the decision e.g. where a person has been granted refugee status.

You can ask for hearing to be held in private but this is not always granted You may wish for the hearing to be held in private or you may not want your name to be published or both. If so, you can write to the WRC to request this. The Adjudication Officer may make a decision in advance of the hearing or may decide this on the day of the hearing. If an Adjudication Officer decides to hold the hearing in public and/or decides to publish your name, you may withdraw your complaint before proceeding any further. This would avoid anything of significance about you or your complaint being published and/or reported on. If you decide to bring your case to the Circuit Court, it will be heard in public. If the judge publishes a decision, this may be publicly available.

Hearings usually take place in Lansdowne House, Ballsbridge, Dublin 4, but they can also take place at different places across the country to make it easier for people who live outside of Dublin, or far from Dublin, to take part. When a complaint is brought and a hearing date is given, the WRC will consider the location of the Parties (Complainant and Respondent). For example, if your complaint is against a shop or café in Kilkenny, there is a possibility the hearing might take place in Kilkenny. The WRC process is designed to be as informal as possible. Parties do not necessarily need to have a solicitor or another legal representative, although many choose to have legal representation. Hearings and mediations at the WRC take place in meeting rooms, with parties and adjudication officers or mediators sitting around tables. Unlike in a traditional court, in the WRC it is normal for everyone involved in hearings and mediations to remain sitting down. Special arrangements can be made to meet the needs of persons with disabilities.

The WRC has specific Procedures in the Adjudication and Investigation of all Employment and Employment Equality Complaints and Disputes. Oral hearings before Adjudication Officers are now, in most instances, held in public and may be reported in the media. If either the complainant or respondent wish to rely on documents to prove their case or to defend a case, they must submit those documents to the WRC at least 15 working days before the hearing. They must also provide copies to the respondent involved in the case at the same time. Complainants should address or refer to the Adjudication Officer as ‘Adjudication Officer’ or ‘Chair’. The Adjudication Officer is responsible for directing the running of the hearing. The Adjudication Officer will usually hear evidence from the complainant and any witnesses relied on by the complainant first. The respondent will then give evidence and call any witnesses it wishes to call. Witnesses are usually first questioned by the person that asked them to attend. The aim is to get answers to help move the case along. Then they are questioned by the other party or their representative.

The Adjudication Officer will provide a written decision. The decision will be sent to all of the parties involved in the case. It may be made available to the public through the WRC website. Please note, it may take several months for a decision to issue.

If you have been successful as the complainant and the respondent does not appeal, the decision becomes final. The respondent has 56 days to comply with (follow) an Adjudication Officer’s decision. If they do not comply with the decision in that time, you may apply to the District Court to have the decision enforced. This District Court should be attached to the area where the respondent ordinarily resides or carries on their business. Before applying to the District Court, you may wish to contact the relevant District Court office to get information on how to do so.

Appeals under the Employment Equality Acts (EEA)

Under the EEA, if either party is unhappy with the decision of an Adjudication Officer, they may appeal it to the Labour Court. The appeal must be brought to the Labour Court within 42 days from the date of the WRC decision. Your appeal should be made using the appeal form. Those wishing to appeal a decision of the WRC should attach a copy of the decision from the WRC. An appeal to the Labour Court means the case will be heard from start to finish again. The Labour Court is more formal than the WRC. Three members sit on a panel to hear the complaint. This compares to one Adjudication Officer in the WRC. Written submissions to the Labour Court must be filed within three weeks of lodging the appeal. These written submissions may contain:

• an outline of the factual background to the case;
• the issues which are disputed by you and the respondent;
• how the legal issues and legal principles apply to a complainant’s circumstances; and
• why the legal issues and principles mean that a particular party should win their case.

The respondent will then have three weeks in which to furnish their written submissions.

Appeals under the Equal Status Act

Under the ESA, if either party is unhappy with the decision of an Adjudication Officer, they may appeal it to the Circuit Court. The appeal must be instituted in the Circuit Court within 42 days from the date of the decision. An appeal to the Circuit Court means the case will be heard from start to finish again. The appeal should be filed in the circuit court area where the respondent resides or carries out its business. You need to fill out a notice of motion to appeal the decision. The Circuit Court decision can itself be appealed to the High Court, but only on a point of law. That is, only if either you or the respondent can show that the Circuit Court acted in a way which was outside of their statutory powers. Appeals to the High Court are less frequent than appeals of decisions of the WRC to the Circuit Court.

What is ‘discrimination’?

Discrimination means less favourable treatment on one of nine protected grounds under the Employment Equality Act (EEA), or one of the 10 protected grounds under the Equal Status Acts (ESA).

Direct discrimination

Where someone treats you less favourably than another person in a similar situation because of a different personal characteristic or circumstance that falls under the protected grounds.

Indirect discrimination

Where a seemingly neutral system or policy disadvantages you because of a personal characteristic or circumstance that falls under the protected grounds.

Discrimination by imputation

Where someone treats you less favourably than another person in a similar situation because someone has incorrectly assumed (‘imputed’) that you fall under the protected grounds.

Discrimination by association

Where someone treats you less favourably than another person in a similar situation because of your connection, relationship or association with someone who falls under the protected grounds.

What is ‘harassment’?

Harassment involves any unwanted conduct related to:

• any of the nine protected grounds under the EEA; or
• the 10 protected grounds under the ESA.

The conduct must also intend to, or result in, or both, violating a person’s dignity and creating for them an environment that is:

• intimidating;
• hostile;
• degrading;
• humiliating; or
• offensive

Learn more about harassment and sexual harassment Read our Code of Practice on Sexual Harassment and Harassment at Work

What is ‘sexual harassment’?

Sexual harassment is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature. Learn more about harassment and sexual harassment Read our Code of Practice on Sexual Harassment and Harassment at Work

What is ‘reasonable accommodation’?

Reasonable accommodation involves an employer or service provider making practical changes so that people with disabilities can access and use services, or take part in employment, or both, on an equal basis with others. This includes services that are paid for and those that are free. Learn more about your rights to reasonable accommodations under the Equal Status Acts  Learn more about your rights to reasonable accommodations under the Employment Equality Acts

Who is the ‘complainant’?

In the context of the EEA and ESA, a complainant is a person who claims they have been discriminated against and/or harassed. The complainant makes a complaint about or takes a claim against the person or organisation they claim was responsible for the discrimination and/or harassment.

Who is the ‘respondent?’

In the context of the EEA and ESA, a respondent is a person or organisation or company that an individual claims is guilty of carrying out acts of discrimination against them and/or harassment.

What is ‘evidence’?

Evidence may be in the form of:

• documents, like a contract of employment;
• CCTV footage;
• an advertisement;
• text messages; or
• emails

Evidence may be introduced by a complainant or respondent at the hearing of a dispute at the WRC. Evidence may also be provided by a person, commonly referred to as a ‘witness’, in oral evidence.

Swearing an oath or affirmation

Witnesses, including a complainant, will be asked to swear an oath or affirmation before giving oral evidence, to confirm that they will tell the truth to the WRC. There is a right to cross-examine any witnesses called by the other side. Very often, the person bringing the complaint to the WRC will tell the WRC about what happened to them in their own words. They will describe things like:

• what happened;
• when the discrimination and/or harassment took place;
• who discriminated and/or harassed;
• where the discrimination and/or harassment took place; and
• the effect the discrimination had on them.

Direct evidence

If a person has legal representation, their solicitor or barrister will guide them through their evidence with a series of questions. When a person gives evidence in their own case, it is called ‘direct evidence’.

Cross-examination

Once the person has finished giving direct evidence, the other side has the right to ask them questions. This is called ‘cross-examination’. While many people find the idea of direct evidence and cross-examination intimidating, it might help to know that the WRC is less formal than a normal court. If you do not understand the question, you can ask for the question to be repeated or rephrased. After cross-examination, the person calling the witness has a final chance to ask more questions to clarify or provide more information about what they may have said during cross-examination. The Adjudication Officer may also ask the witness some questions.

What is an ‘Adjudication Officer’?

An Adjudication Officer investigates disputes and claims that individuals make under the EEA and ESA. They:

• chair the hearing of disputes;
• investigate the dispute;
• decide if a complainant’s case has a basis or not;
• decide if a respondent has shown,
  • they did not discriminate, or
  • had an objective justification for doing so (This means they had good reason permitted by law for the discrimination.).

An Adjudication Officer’s role is similar to that of a judge in a normal court, but they are likely to act in a less formal manner, and you should call them ‘Chair’ or ‘Adjudication Officer’.

What is the burden of proof?

The complainant must prove or provide evidence to demonstrate that the allegation (unproven claim or statement) of discrimination they have made is likely to have actually happened. This is called the ‘burden of proof’. Once the complainant has shown that the discrimination is likely to have happened, they are said to have shown a ‘prima facie’ (‘at first sight’) case of discrimination. The burden of proof now shifts to the other side. This means the party answering the complaint must now show that they either:

• did not discriminate against the complainant, or
• have a good defence to the allegation.

This defence may be that there was a good reason permitted by law for the discrimination. Under the EEA, for example, if evidence at the hearing shows that a pregnant employee told her boss during her lunch break that she was pregnant and was then dismissed from her job soon after, the ‘burden of proof’ is likely to then move to the respondent, in this case the employer, to give evidence to show that the employee’s pregnancy was not the reason for her dismissal from her job. Under the ESA, for example, if evidence at the hearing shows that a member of the Roma community entered a shop to buy bread and milk and that the shop assistant behind the till refused to serve them, then the ‘burden of proof’ is likely to move to the respondent, in this case the shop, to provide evidence to show that the customer was not refused service because they were a member of the Roma community.

What is a ‘comparator’?

A complainant will need to be able to show that they have been treated less favourably than another person has been or would be treated in a similar situation. The other person is called the ‘comparator’. For example, Under the Employment Equality Acts, for example, if a female employee claims she has been discriminated against because she is a woman, it will be necessary for her to provide evidence to show that her male colleague has been treated more favourably than her. In this example, the male colleague is described as the ‘comparator’.

What is victimisation?

Victimisation occurs where a person is treated badly or punished as a result of having made a complaint to the WRC or having been involved in some way in a complaint. For example by:

• supporting another person who took a complaint;
• giving evidence as a witness at the hearing of someone else’s complaint; or
• being against an act that the Employment Equality Acts or the Equal Status Acts say is unlawful.

An example might be where a person complains to the WRC that their employer has harassed them. If the employer demotes them for making the complaint, that demotion may be a form of victimisation.  It does not matter if the original complaint of harassment was successful or not. The key question is whether the person was victimised for making a complaint in the first place.

What are written submissions?

Before a hearing takes place, the person making the complaint and the person or group being complained about, may put their legal arguments in writing and send them to the Workplace Relations Commission (WRC). These are called written submissions.

The evidence and the law

These written submissions detail what each person wants to say about the case. Written submissions will usually include details of:

• what each party say happened (the factual background); and
• how the law applies to their particular case and circumstances.

Previous decisions are relevant

Previous decisions the WRC has made about similar complaints may support a complainant. This can be particularly helpful if their case is similar to other successful cases. Complainants may wish to refer to other cases in their written and/or oral submissions for that reason. You can find these on the WRC Decisions Database.

Timing of written submissions

The WRC has certain rules about when written submissions should be sent to the WRC and to the other party. At the moment, submissions and any other documentation a complainant or respondent wishes to rely upon must be sent 15 working days before the date of the hearing. If this rule is not followed by the other side, a complainant may ask for the case to be adjourned, in other words, heard on another day. This ensures fairness and that they have time to review the documents. This request can be made to the Adjudication Officer on the day of a hearing.