EDA135

This dispute concerns a claim by an Employee (hereafter "the Complainant") that he was subjected to discriminatory treatment and victimisation by his Employer, the Department of Social Protection (hereafter "the Respondent") on the ground of his disability. The Complainant claimed that he had been subjected to less favourable treatment by reason of the Employers failing or neglecting to promote him on 21st April 2010. This failure to promote him has been on-going. Furthermore, the Complainant maintained that after he lodged his complaint with the Equality Tribunal the Respondent commenced disciplinary action against the Complainant. The Complainant has been suspended on full pay since 29th August 2011.

Complainant’s Position

The Complainant referred a claim of discrimination to the Director of the Equality Tribunal on 7 July 2010 under the Employment Equality Acts. Having investigated the complaint the Equality Officer decided as follows:-

• Having investigated the above complaints, I hereby make the following decision in accordance with Section 79(6) of the Employment Equality Acts:

  I find that the Complainant has not established a prima facie case of discrimination on the disability ground.

  I find that the Complainant has not established a prima facie case of victimisation. Therefore, this complaint fails in its entirety.

The matter came before the Labour Court on 28th June 2012. The matter was adjourned and finally came on for hearing on 1st February 2013.

The facts of this case can be summarised as follows. The Complainant has been employed in the Civil Service since 1974. He has spent his entire career as a Clerical Officer. Over that time he has been diagnosed with a number of medical conditions including bi-polar disorder, diabetes and sleep disorder. He submits that, as a result of his disability he has been subjected to on-going discrimination by the Respondent. He submits that while the pattern of discrimination can be discerned over his entire career, the latest incident occurred in April 2010 when a work assessment carried out by his supervisor rated him as unfit for promotion. He submits that he failed to secure promotion as a result of this assessment. He further submits that his disability influenced both the poor rating he received and the related decision not to promote him to the staff officer grade.

Following an incident at work on 25th August 2011 the Complainant was suspended on full pay pending an investigation under the disciplinary procedures in place in the Civil Service. On foot of the suspension the Complainant submitted a complaint of victimisation against the Respondent on 12th November 2011. He complained that the decision to suspend him and subject him to disciplinary proceedings was a response to the complaint he had made under the Act.

Respondent’s Position

Counsel for the Respondent argued that, as the complaint was submitted to the Equality Tribunal on 7 July 2010, the only acts of discrimination which could be considered by the Court were those which allegedly occurred in the six month period prior to the complaint being lodged Accordingly she argued that the Court must confine itself to considering alleged acts of discrimination, which are denied, that occurred after 7th January 2010. Counsel accepted that the complaint of victimisation is properly before the Court.

Conclusions of the Court

At the Commencement of the investigation into the complaint the Court asked the Complainant to outline the facts and evidential basis on which he intended to ask the Court to conclude that a prima facie case of discrimination had been established thereby shifting the burden of proof of compliance with the Act to the Respondent.

The Complainant told the Court that

• 
  •He disputed the accuracy of the performance assessment carried out by his superiors on 22nd April 2010. However he told the Court that he had no evidence to present in support of that contention.

  •He told the Court that he intended to introduce a letter from a former supervisor outlining the quality of his work. However he told the Court that the author of the letter would not be called to prove the letter or to give evidence to the Court.

  •He told the Court that he would introduce a note dated 26th November 2001 written by a former supervisor that praised the quality of his work. He told the Court that the supervisor would not attend Court or give evidence on the matter.

  •He told the Court that he would say that he had earned a good Leaving Certificate and had been accepted onto a University course when he completed second level education.

  •He told the Court that he would say that he had discharged his duties to a high level whilst employed in the Civil Service but that he was the victim of corrupt, incompetent and lazy superiors who“had it in for him” and “did not like him.” He told the Court that he would not be calling any witnesses to support this contention.

  •He stated that he would say that he got on with most members of staff but that he did not get on with some of his superiors. He told the Court that he would not be calling any witnesses to confirm this assertion.

  •He said that people in the Department were corrupt and operated a system of cronyism. He said that he would not be calling any witnesses to give evidence relating to this assertion.

  •He said that he was told by a member of a Trade Union that Department Officials discriminated against people with depression. He said that he would not be naming or calling that person to give evidence to the Court on this matter.

Finding of the Court

In evaluating the evidence before the Court it must first decide whether the Complainant has established a prima facie case pursuant to Section 85A of the Employment Equality Acts 1998 to 2008. This 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. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. This 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".

In this case the Court has carefully examined the lengthy written submissions of both parties together with the outcome of its interactions with the parties at the hearing of the matter. On that basis the Court finds that the Complainant sought to elevate mere assertions to the status of facts without intending to call any supporting witnesses or submit any relevant supporting evidence to the Court. In that regard the Court finds that the Complainant failed to make out any case in support of his complaint. As the Court found that the Complainant had no possibility of succeeding in his action it decided that the Respondent had no case to answer, terminated the hearing and dismissed the appeal. .

Determination

The Court determines that the Complainant has not identified or established any facts or identified or adduced any credible evidence from which any inference of discrimination could be drawn by the Court. Accordingly the appeal is rejected. The Court upholds the Decision of the Equality Officer.

Claim of Victimisation

Complainant’s Position

The Complainant's case is that after he lodged his claim with the Tribunal the Respondent has taken steps to discipline him and suspended with pay on 29th August 2011. The Complainant claims that this adverse treatment is influenced by the challenge he has initiated against the unlawful discrimination that he believes the Respondent has subjected him.

At the hearing into this matter the Complainant told the Court that he was suspended on full pay pending an investigation of an incident in which he is alleged to have lowered his trousers and exposed his buttocks following an engagement he had with his superior. He told the Court that he had spent the previous night undergoing sleep related tests in hospital. He told the Court that on the morning in question he went to work directly from the hospital and did not have the opportunity to replace his soiled undergarments. He said that he after he had had an engagement with his supervisor he leaned over to open a blind and his trousers slipped and exposed part of his uncovered buttocks. He denied that he had exposed his buttocks to his supervisor. He acknowledged that this is why he was suspended pending an investigation.

Findings of the Court

On the basis of his own submissions the Court finds that the reason the Complainant was suspended from work was self-evidently unrelated to a complaint under this Act. Accordingly, the Court upholds the Decision of the Equality Officer and rejects the appeal.

Determination

The Court determines that the complaint is not well founded, rejects the appeal and upholds the Decision of the Equality Officer.

Signed on behalf of the Labour Court



Brendan Hayes
8th February, 2013______________________
JFDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.