Employment Equality Acts
1998-2008
EQUALITY OFFICER'S DECISION
NO: DEC-E2010-049
PARTIES
An applicant
- V -
An potential employer
(Represented by Mr Rory White BL on the instructions of Flynn O'Driscoll Business Lawyers)
File references: EE/2008/341
Date of issue: 16 April 2010
File references: EE/2008/341 - DEC-E2010-049
Keywords
Employment Equality Acts 1998 and 2008 – Discriminatory Treatment - Access to Employment - Age - Prima Facie case
1. Dispute
1.1. This dispute concerns a claim by an applicant (hereafter "the complainant") that he was subjected to discriminatory treatment contrary to section 6 and 8 of the Employment Equality Acts by a potential employer (hereafter "the respondent") on the grounds of his age. The complainant maintains that an interview he attended was not conducted appropriately and that his age had been a factor in him not been selected for a position.
1.2. The complainant referred his claim of discrimination to the Director of the Equality Tribunal on 28 May 2008 under the Employment Equality Acts. This claim was made on the age ground. On 30 November 2009, in accordance with her powers under section 75 of the Acts, the Director then delegated these cases to Tara Coogan- 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. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 16 April 2010.
2. The hearing
2.1. I am satisfied that both parties were appropriately notified of the hearing date. On the day of the hearing, the respondent attended with a legal team and witnesses. I note that they did so at extensive cost and time due to the fact that a key witness had to travel long haul distance. The complainant did not attend the hearing and I am satisfied that he had made no effort to contact the Tribunal.
3. Decision
4.1. In evaluating the evidence before me, I must first consider whether the complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent. This means that mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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".
4.2. I note that by failing to attend the hearing the complainant has effectively deprived the respondent the opportunity to defend itself against the written allegations made by the complainant. I note that the respondent describes these allegations as 'spurious' and 'malicious'. I am satisfied that the publication of unsubstantiated allegations in the context where a complainant has not pursued the claim is not in the interest of natural justice and find therefore that the parties involved in this complaint ought to be kept anonymous.
4.3. Furthermore, having considered this issue, I am satisfied that the complainant was made aware of the fact that a named employee of the respondent would have to travel half way across the globe to defend himself. I am satisfied that the complainant, with his omission to act in relation to this complaint, has effectively impeded my investigation before this Tribunal. Therefore I consider that an order against the complainant for an award in expenses accrued, in accordance with section 99A, would have been appropriate. In the circumstances, where the respondent has declined to make such a request, I will not make such an order. However, I do wish to put in on record that the right to make a complaint to this Tribunal comes with certain responsibilities that the complainant has utterly disregarded.
4.4. The complainant has failed to establish a prima facie case of discrimination. Therefore, the complaint fails.
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Tara Coogan
Equality Officer
16 April 2010