FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : RGIS INVENTORY SPECIALISTS LTD. - AND - LIAM DAVIS DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal under section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Worker appealed the decision of the Equality Officer to the Labour Court on the 17th December, 2013. A Labour Court hearing took place on the 28th March, 2014. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Mr. Liam Davis against the decision of the Equality Tribunal in his claim of discrimination on grounds of his age against RGIS Inventory Specialists Limited. The claim relates to the filling of a post of stock controller with the Respondent.
In this Determination the parties are referred to as they were at first instance. Hence, Mr. Davis is referred to as the Complainant and RGIS Inventory Specialists Limited is referred to as the Respondent.
The Facts
The Complainant applied for the post in issue through FAS. The mode of application involved filling in an on-line questionnaire. The Complainant completed the on-line part of his application and was informed that he was successful. He was told that he would progress to the next stage of the recruitment process. He was invited to attend a briefing session at the Respondent’s premises. At this session details of the work involved was given. The Complainant contends that those present were told that they would commence training the following week. The Complainant contends that he was given a date for this session by a manager ( hereafter referred to as Mr D). The Complainant says that he told Mr D that he was unavailable on the date proposed because he was leaving the country on a short holiday. He was informed by Mr D that an alternative date would be made available. In the event the Complainant received an email on the morning of the proposed session informing him that he was scheduled to attend the session on that day. He replied to Mr D pointing out that he had previously advised him of his inability to attend on the day in question and reminding Mr D of his earlier commitment to provide another date.
On his return from holidays the Complainant received a notification from the Respondent informing him that his application was unsuccessful. The Complainant made several attempts to contact Mr D but he did not receive a reply.
The Complainant was 57 years of age at the material time. He told the Court that the majority of those present at the briefing session were in their twenties. According to the Complainant Mr D asked those present at the briefing session if anyone wished to leave. He said that he believed that the remark was directed to him because of the way Mr D looked at him. The Complainant accepted that candidates were not asked to disclose their age. However they were asked for identification and for that purpose he provided his driving license, which showed his date of birth.
On these facts the Complainant contends that the only viable explanation for Mr D’s failure to rearrange the training session at a time that he was available was because of his age.
The Respondent denied that the Complainant’s age was a consideration in what occurred. It pointed out that when the Complainant failed to attend at the second session its computer system generated a rejection letter automatically. The Respondent told the Court through its solicitor that what occurred was unfortunate but that it was unrelated to the Complainant’s age. Mr D was not available to give evidence.
The Law
The legal principles applicable in a case such as this are well established and can be briefly summarised.
Section 85A of the Act provides that where facts are established from which discrimination can be inferred the onus of proving the absence of discrimination, on the normal civil standard, rests on the Respondent. The test for applying that provision is well-settled in a line of decisions of this Court starting with the determination inMitchell v Southern Health Board[2001] E.L.R. 201. That test requires the complainant to prove the primary facts upon which he or she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged that the burden of proving that there was no infringement of the principle of equal treatment passes to the respondent. If the complainant does not discharge the initial probative burden which he bears, his case cannot succeed.
The type or range of facts which may be relied upon by a complainant can vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts (see the determination of this Court inKieran McCarthy v Cork City CouncilLabour Court Determination EDA082 (December 16, 2008)).
In all discrimination cases the Court should be alert to the fact that the motive or reason for an impugned decision may be conscious or subconscious. InNagarajan v London Regional Transport[2001] UKHL 48, Lord Nicholls of Birkenhead said the following: -
- I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn.
While that case involved a claim of racial discrimination the general principle enunciated by Lord Nicholls is equally applicable in cases involving other forms of discrimination.
A similar approach was taken by this Court inNevins, Murphy, Flood v Portroe Stevedores Limited[2005] 16 E.L.R. 282. Here, in a case involving age discrimination, the Court held: -
- Discrimination is usually covert and often rooted in the subconscious of the discriminator. Sometimes a person may discriminate as a result of inbuilt and unrecognised prejudice of which he or she is unaware. Thus, a person accused of discrimination may give seemingly honest evidence in rebuttal of what is alleged against them. Nonetheless, the court must be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution.
However, a fundamental requirement in any case alleging unlawful discrimination is that the Complainant proves on credible evidence primary facts from which it can be inferred that he or she was treated less favourably than a person not having the characteristic relied upon (in this case age) is, was or would be treated in similar circumstances. Mere assertion can never suffice to satisfy the requirement placed on a Complainant by s.85A of the Act. InValpeters v Melbury Development Ltd[2010] 21ELR 64 this Court explained the position as follows: -
- 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.
Conclusions of the Court
In this case the Complainant has not relied upon an actual comparator in advancing his case. The case must therefore be considered by reference to how a younger person who failed to attend the second induction session would have been treated. While the Complainant may well believe that the treatment of which he complains was related to his age no evidence whatsoever was adduced from which such an inference could be drawn. While the manner of his treatment may well be considered unfair when viewed objectively that in itself is an insufficient basis upon which the Court could draw an inference of discrimination.
In these circumstances the Court must conclude that the Complainant has failed to establish facts of sufficient significance to raise an inference of discrimination on grounds of his age. In these circumstances his claim cannot succeed.
Determination
Accordingly the appeal is disallowed and the decision of the Equality Tribunal is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
CR______________________
29th April, 2014Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.