EDA1116

The case comes before the Court pursuant to Section 83 of the Employment Equality Acts 1998 – 2008.

Background:

This dispute concerns a claim by Ms. Michelle Svoboda (hereafter "the complainant") that she was subjected to discriminatory treatment, harassment and victimisation contrary to the Employment Equality Acts by IBM Ireland Product Distribution Limited (hereafter "the respondent") on the grounds of her gender and race. The complainant maintains that she was abused, degraded and insulted in her employment and was subjected to disciplinary proceedings. Furthermore, she submitted that the respondent failed to investigate a complaint of bullying/harassment made by the complainant or on her behalf.

The complainant first referred a complaint of discrimination, harassment and victimisation to the Director of the Equality Tribunal on the 23rd of February, 2007 under the Employment Equality Acts. This claim was made on the gender ground. A subsequent complaint claiming harassment and victimisation was referred on the 6th of July, 2007.

The Equality Officer investigated these complaints and decided that the“complainant has been unable to establish a prima facie case of discrimination, harassment and victimisation on the gender and/or race ground(s) in accordance with the Acts. Therefore the complaint fails.”

The Complainant appealed this decision to the Labour Court.

The Labour Court heard the appeal on Thursday 5th May, 2011.

Position of the Parties: -

Both parties made extensive written submissions to the Court. Essentially both parties restated the substantive cases they had made to the Equality Officer.

Findings of the Court: -

Section 85 A (1) of the Act provides that

“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.”

Kerr in his commentary on this section at pp l223 Employment Equality Legislation third edition says“This provision requires that a complainant has to establish the primary facts upon which he or she relies but also that those facts are of sufficient significance to raise an inference of discrimination.”

This Court inSouthern Health Board v Mitchell [2001] E.L.R. 201said

“ It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

In this case the complainant relied entirely on an email submitted to the Respondent by a third party and on a series of performance review interviews conducted by the respondent with the complainant as the relevant primary facts that raised a presumption of discrimination.

The Court reviewed this evidence and found that the email made no reference, either directly or indirectly, to any of the protected grounds relied on by the complainant.

The Court also found that the performance review interviews contained no reference either direct or oblique to the protected grounds relied on by the complainant.

The Courts attention was drawn to the observations made by this Court inMassinde Ntoko v Citibank [EED045]

“based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the complainant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging the complainants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof”

It was put to the Court that this observation effectively provides it with the authority to decide that a prima facie case had been made out and that the burden of proof of compliance with the Act had shifted to the respondent.

The Court does not accept this contention. The Court has consistently found that mere allegations unsupported by any corroborative evidence are insufficient to establish a prima facie case and so transfer the burden of proof. The Court has stated inMelbury Developments Ltd v Valpeters EDA 17/2009“mere speculation or assertion, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

In this case the totality of evidence presented to the Court amounts to an email from a third party that makes no reference to any of the protected grounds and a series of performance review interviews that again raise no suggestion either direct or oblique that there was any discrimination of any of the protected grounds. The allegations by the complainant do not amount to any more than “mere specilation or assertion, unsupported by evidence”. This cannot be “elevated to a factual basis upon which an inference of discrimination can be drawn.”

Finally, the Court finds that there is no evidence of harassment or victimization of the complainant by the respondent in relation to any of the complaints which are part of the appeal before the Court.

Determination:

The Court upholds the decision of the Equality Officer. The appeal is dismissed.

Signed on behalf of the Labour Court



Brendan Hayes
1st June, 2011______________________
CONDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.