The Equality Tribunal
Employment Equality Acts
Decision DEC-E2010-044
PARTIES
Charles Nyando
- V -
Medical Laboratory Scientists Association
(Represented by Sean Gallagher & Co., Solicitors)
File reference: EE/2005/183
Date of issue: 8 April 2010
Keywords - Employment Equality Acts – Section 13: Membership of certain bodies - Discriminatory Treatment - Age - Race - Prima Facie case
1. DISPUTE
1.1 This dispute concerns a claim by Mr Charles Nyando that he was subjected to discriminatory treatment by the Medical Laboratory Scientists Association on the grounds of his age and race in terms of Section 6(2) of the Employment Equality Acts and contrary to Section 13 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 25 May 2005 under the Employment Equality Acts. On 1 October 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts on which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 27 November 2009 and 25 March 2010. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant submitted that he was a member of the respondent association and was represented by the then Acting General Secretary of that association, Mr A, since 8 May 2003 in relation to ongoing problems at work. The complainant was employed as a Cytologist in a hospital.
2.2 The complainant submitted that in November 2004, Mr A advised him that a new General Secretary would be taking over and that the new General Secretary, Mr B, would be taking over his case.
2.3 The complainant submitted that he met with Mr B on 3 December 2004 to discuss his case. The complainant submitted that he went through the detail of his case with Mr B on that date and that he was shocked to find out a few days later that Mr B was to represent the other party, Ms C, in the ongoing work problem.
2.4 The complainant submitted that he explained that this behaviour amounted to a conflict of interest on the part of Mr B and that it was unethical and prejudiced due process. The complainant submitted that Mr B said that Mr A would continue to represent the complainant and that they would build a 'Chinese wall' to insure that no information passed from Mr A to Mr B or vice versa.
2.5 The complainant submitted that shortly after that Ms C began to victimise him as a result of what she had learned from Mr B.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent strenuously denied discriminating against Mr Nyando.
3.2 The respondent submitted that Mr B met with the complainant on 3 December 2004, and advised the complainant that he would liaise with Mr A, who had been representing the complainant since the start of his problems at work. That meeting closed with Mr B agreeing to review all the documentation with a view to taking over the role of representative.
3.3 The respondent submitted that, at the time of the afore-mentioned meeting, Mr B had already undertaken to meet with Ms C, without being aware of the nature of the issue to be discussed. This meeting took place on 6 December 2004. Approximately five minutes into the meeting, Mr B stopped the discussion as he realised that he had already spoken to the other party. Mr B suggested seeking an alternative representative for Ms C, however she was happy for him to represent her. Mr B advised Ms C that although it was a difficult set of circumstances, the association must represent all its members in a fair and reasonable manner. It was agreed that Mr B and Mr A would provide individual representation to Ms C and the complainant respectively but would adopt a 'Chinese wall' approach, not discussion the case or sharing information. Ms C had objected being represented by Mr A as he had already written to her in his capacity as the complainants representative. In view of Mr A' s history as the complainant's representative it was agreed that he would continue to represent the complainant.
3.4 The respondent submitted that the foregoing was carried out in accordance with normal MLSA practice whereby members of the national executive assist the single full-time official.
3.5 The respondent submitted that the complainant was in no way treated less favourably than any other member of the association whichendeavours to provide full, fair and equal representation to all members who seek assistance with the limited staff resources available to it.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the respondent discriminated against Mr. Nyando on grounds of age and race, in terms of Section 6 of the Employment Equality Acts, and contrary to Section 13 of those Acts.
4.2 Section 85A of the Employment Equality Acts sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts from which discrimination may be inferred. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised.
4.3 In the hearing the complainant confirmed his origins as Kenyan, stated that he was older than Ms C, and put forward three ways in which he was less favourably treated on that basis. Firstly, the complainant stated that information he gave to the respondent was passed on to his employer, secondly that his local workplace representative refused to represent him in relation to problems he was having with his employer and, thirdly, the complainant stated that he did not receive the association's newsletter and therefore did not get notified of a senior, full-time vacancy.
4.4 In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Labour Court, in adopting the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, stated that “… the court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent …”. In considering evidence submitted by both the complainant and the respondent, a number of points emerge:
· The Association is a small organisation that only has one full-time officer employed by it (in addition to an administrative position)
· The Association offered to have to the former acting General Secretary continue to represent the complainant while the current General Secretary would represent the other party to the dispute (both parties being members)
· The complainant accepted this proposal but the other party sought independent representation
· During the dispute resolution process that followed, the complainant indicated that he no longer wished to have representation from the respondent
· The newsletter referred to in the hearing ceased to be circulated in or around 2002 and, in any case, did not contain job advertisements for full-time vacancies.
4.5 When asked as to how the treatment complained of was connected to the grounds of race and age, the complainant replied on a number of occasions that he did not know and stated that the respondent should be asked to explain the connection.
4.6 The complainant also stated that shortly after his meeting with the respondent on 3 December 2006, his employer circulated a staff satisfaction survey to all staff. The complainant stated that this was evidence to prove that the respondent had shared details of his problems at work with his employer.
4.7 I am mindful of the decision of the Labour Court in the case of Melbury Developments Limited and Valpeters (ADE/09/16). In that case the Labour Court stated, inter alia, that:
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.
In this case it was submitted that the Complainant was treated badly by the Respondent and the Court was invited to infer that he was so treated because of his race. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that persons of a different race or nationality were or would be treated more favourably. All that has been proffered in support of that contention is a mere assertion unsupported by any evidence.
Mr Grogan, Solicitor for the Complainant has pointed to the difficulty for the Complainant in obtaining evidence concerning how others were treated. He submitted that in these circumstances the Respondent should be required to prove that others were treated similarly to the Complainant. In the Court’s view such an approach would amount to placing the entire probative burden on the Respondent. That would involve an impermissible departure from the plain language and clear import of Section 85A of the Act and the Community law provision upon which it is based.
4.8 On the basis of the foregoing I find that the complainant has not established facts from which discrimination treatment may be inferred. As no prima facie case has been established, this complaint fails.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that a prima facie case of discriminatory treatment on the basis of the race or age grounds has not been established and this complaint fails.
Conor Stokes
Equality Officer
8 April 2010