ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002681

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 01/06/2016

Workplace Relations Commission Adjudication Officer: Shay Henry

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 25 of the Equal Status Act, 2000 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

 Complainant’s Submission and Presentation:

The complainant understood that the grant should follow automatically on acceptance onto the Back to work Enterprise Allowance scheme. She made several phone calls but received no clear communication and was hung up on.   As the grant of €2,500 was due last October and she did not receive it she should get €5,000 now with interest. The complainant believes she may be the only black participant on the scheme.

Respondent’s Submission and Presentation:

The complainant was accepted on the Back to Work Enterprise Allowance scheme. The Department’s website in relation to this scheme references the criteria and process for applying for financial assistance under the Enterprise Support Grant (ESG). There is no record of any application for ESG having been made by the complainant, since she was awarded the Back to Work Enterprise Allowance effective from 30 September 2015. It is still open to her to do so. The respondent’s representative named in the complaint, Ms G is not the responsible person for administering the ESG.

The respondent did not receive any correspondence from the complainant in advance of her completion of the Form ES.1 on 23 March 2016.

There is no basis to suggest that this is an issue based on race as there are people from many different ethnic backgrounds supported on the scheme.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 25 of the Equal Status Act, 200 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

Issues for Decision:

Whether discrimination has occurred in the provision of service to the complainant and, if so, the appropriate remedy.

Legislation involved and requirements of legislation:

The Equal Status Act provides as follows;

3. —[(1) For the purposes of this Act discrimination shall be taken to occur—

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B),] (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

… (h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”),

5. (1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

Decision:

The complainant contends that she has been discriminated against because of her colour. The procedure for availing of the Enterprise Support Grant is clearly outlined on the respondent’s web site and applies equally to all applicants. The respondent provides support to such applicants by the assignment of a case officer to steer them through the process should they require assistance. No such assistance was sought by the complainant.

Section 38A (1) of the Acts provides that the burden of proof is:

"Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary."

It requires the complainant to establish, in the first instance, facts upon which he or she can rely in asserting that prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.

As the requirement to apply formally for the grant through a defined process applies to all equally a prima facie case of discriminatory treatment has not been established in this instance and therefore I find that the complainant was not discriminated against pursuant to Section 5 of the Acts.

Dated:   2^nd August 2016