EDA121

Position of the parties

The Complainant

The Complainant is a Lithuanian national. She was engaged by the Respondent as a painter between 17^thJanuary 2006 and 23^rdMarch 2006. The substance of the complaint is that the Complainant was required to pay the Respondent €1,000 for training and related services but received no such training or other services in consideration of this payment. It is further claimed that she was discriminated against in terms of conditions of employment in not receiving a contract of employment; that she did not receive health and safety training or documentation in her own language. She further contends that she was dismissed on grounds of her nationality.

The Respondent

The Respondent firstly denied that it is the correct respondent in these proceedings. It claims that it is an employment agency and it merely assigned the Complainant to work for a third party.

Without prejudice to its contention in that regard the Respondent denies that the Complainant was treated differently to any other worker recruited by it and assigned to a third party.

Conclusion of the Court

Preliminary issue

The Court first considered if the Respondent herein was the Complainant’s employer for the purposes of the Act.

Section 2 of the Act defines the term ‘employer’ as : -

• “employer” , subject to subsection (3) , means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

• (c) in relation to an agency worker, the person who is liable for the pay of the agency worker shall be deemed to be the employer

The substantive case

The Law

The Complainant claims to have been discriminated against on grounds of her nationality contrary to s.8 of the Act. While her representative did not characterise her claim as such it is clear that what is alleged is direct discrimination. As is now well settled there are essentially two fundamental questions which must be answered in the Complainant’s favour before a claim of direct discrimination can be made out. Firstly, the Court must be satisfied that the Complainant was treated differently, and less favourably, than another person in comparable circumstances is, was or would be treated. This is often referred to as “the less favourable treatment” question. This involves consideration of the treatment afforded in similar circumstances to a comparator, actual or hypothetical. Secondly, the Court must be satisfied that the treatment complained of was on one of the proscribed grounds referred to at s.6 of the Act. This is often referred to as “the reason why” question. The answer to both questions must be found in the evidence adduced by the parties and by the proper application of s.85A of the Act which allocates the probative burden as between the Complainant and the Respondent.

The use of a comparator in anti-discrimination law is, essentially, an evidential tool designed to answer the “less favourable treatment” question. If the Complainant shows that the treatment which he or she was afforded was less favourable that that afforded to a comparator whose circumstances are similar, other than in respect to a protected characteristic, the first question is resolved in his or her favour. The Court must then go on to consider if the impugned treatment was on one of the proscribed grounds. This means that a reason for the less favourable treatment – not necessarily the only reason but one that is significant in the sense of more than trivial – must be the protected characteristic relied upon, such as the Complainant’s race, disability gender, etc. (see recent observations of Elias LJ inJP Morgan Europe Ltd v Chweidan[2011] IRLR 673,at par 5).

The Complainant did not rely on an actual comparator in advancing her claim. It was submitted on her behalf that the Court should consider her complaints by reference to how a hypothetical comparator would be treated in a comparable situation. In order to construct a hypothetical comparator the Court should establish the factual criterion for the impugned decision and consider if that criterion would have similarly been applied in the case of a person without the protected characteristic (see the observations of Lord Nicholls inShamoon v Chief Constable of the Royal Ulster Constabulary[2003] IRLR 285, paragraphs 8-12). This frequently involves a conflation of the “less favourable treatment” question and the “reason why” question. This approach was succinctly explained by Underhill P inCordell v Foreign and Commonwealth Office, Unreported, UKEAT, 5^thOctober 2011, at par 18, as follows: -

• “To spell it out: if A, who is deaf, has been treated differently from B, who is not, and that is indeed the only difference between their cases, the irresistible inference will be that the reason for the different treatment is A's deafness; and likewise if A is subjected to a detriment on the grounds of his deafness it logically follows (at least if that disability is the principal ground) that a person who was not deaf would not have been so treated. As between the two questions, it is the reason why question that is in truth fundamental”.

Conclusion

As this Court previously pointed out in Determination EDA0917,Arturs Valpeters v Melbury Developments[2010] 21 ELR 64, mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The Court cannot engage in speculation as to how a person of a different nationality to the Complainant would have been treated in a comparable situation nor can it decide the case on the basis of conjecture as to the factual criterion for the treatment complained of. The responsibility to bring forward the necessary proofs to establish the primary facts from which discrimination can be inferred rests fairly and squarely on the Complainant and her legal advisors. There was a total failure to discharge that responsibility in this case. Accordingly the claims of discrimination cannot succeed.

Determination

For all of the above reasons the appeal is disallows and the decision of the Equality Tribunal is affirmed.



Signed on behalf of the Labour Court



Kevin Duffy
13th January 2011______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.