EDA1516

Background

On 28^thApril 2011, the Complainant referred a complaint to the Equality Tribunal alleging that the Respondent had subjected him to victimisation contrary to Section 74 (2) of the Acts.

The Equality Officer, by decision dated 27^thMarch 2015, made the following decision in accordance with Section 79 (6) of the Acts:

‘The complainant has failed to establish a prima facie case of victimisation’.

Position of the parties

The Claimant

The Claimant had pursued a previous complaint under the Acts that the Respondent had subjected him to adverse treatment constituting victimisation within the meaning of Section 74 (2) of the Acts. That complaint culminated in a Determination of this Court on 30^thSeptember 2010 (EDA1017). The Claimant believes that the Respondent, in the period after 30^thSeptember 2010, denied him work assignment when such assignments were readily available. The Claimant contends that such denial of work assignment was as a result of his having made the earlier complaint. The Complainant claims that the Respondent’s denial of work assignment was victimisation within the meaning of Section 74 (2) of the Acts.


The Respondent

The Respondent denies that the Complainant was subjected to adverse treatment as a result of his earlier complaint and contends that the treatment of the Complainant as regards work assignment in the relevant period is no different to that which had applied prior to September 2010.

Conclusions of the Court

The Law

This Court has set out (Teresa Mitchell v Southern Health Board, AEE/99/8) that a claimant alleging discrimination under the Acts

‘must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

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 was no infringement of the principle of equal treatment.’

This Court must therefore consider whether in the instant case the Claimant has established that the primary facts are of such significance to raise a presumption of discrimination within the meaning of the Acts. It is only if that has been established that the onus shifts to the Respondent to prove that there was no infringement of the principle of equal treatment.

The Court must also consider if the Complainant’s claim of victimisation is sustainable having regard to the provisions of the Acts. Section 74(2) of the Acts defines victimisation as follows: -

•“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act orthe Equal Status Act 2000or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such“measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment”

That obligation is given effect in Irish law by s.74(2) of the Acts. As set out by this Court (EDA1017) the definition of victimisation contained in that section contains essentially three ingredients, all of which must be present for a claim under the Acts to succeed. It requires that: -

1. The Complainant had taken action of a type referred to at s.74(2) of the Acts (a protected act),

2. The Complainant was subjected to adverse treatment by the Respondent, and,

3. The adverse treatment was in reaction to the protected action having been taken by the Complainant.

What constitutes a protected act is defined, at s.74(2) (Paragraphs (a) to (g) inclusive, as set out above).

The victimisation complained of

In identifying a protected act for the purpose of advancing his claim of victimisation the Complainant refers to his complaint of victimisation which resulted in a determination of this Court dated 30^thSeptember 2010 (EDA1017). That this action was taken by the Claimant is indisputable. That this action is a protected act is also indisputable.

Before giving consideration as to whether the experience of the Complainant in the period after 30^thSeptember 2010 amounted to adverse treatment by the Respondent the Court has decided to consider first whether that treatment, adverse or not, was in reaction to the protected action having been taken by the complainant.

In order for a complaint of victimisation under the Acts to succeed the adverse treatment complained of must be capable of being construed as a reaction to the protected action which was taken. In the instant case the Claimant and the respondent confirmed to the Court that the denial of work assignment to him is a practice which dates to a period in 2005 prior to his initiation of the claim which constitutes the protected action. It is clear therefore that the treatment complained of and claimed to be victimisation within the meaning of s. 74 (2) of the Acts – the denial of work assignment to the claimant – is a practice which pre-dates his initiation of the protected action and thus could not, by any reasonable construction, be a reaction to the taking by the Claimant of that protected action.

As earlier stated, for a claim of victimisation contrary to Section 74 (2) to succeed, the three ingredients of that section of the Act as set out by this Court (EDA1017) must be present. In the instant case the Court does not find that the treatment alleged to be adverse was in reaction to a protected action having been taken by the Claimant.

The Court finds that the primary facts as set out by the Claimant in this case are not of such significance as to raise a presumption of discrimination within the meaning of the Acts.

Determination.

For the reason referred to above the Court is satisfied that the claimant has not established a prima facie case of victimisation. Accordingly the appeal is disallowed and the decision of the Equality Officer is affirmed.

Signed on behalf of the Labour Court



Kevin Foley
CO'R______________________
4th November, 2015Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.