ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004115

Complaints for Resolution:

Venue: WRC; Lansdowne House, Dublin 4.

Date of Adjudication Hearing: 08/12/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Attendance at Hearing:

 Background

The Complainant was employed as an Agency Worker. She was last placed in the bank on August 2013. Her placement ceased in January 2016. She was given redundancy payment on 29^th January 2016. She has claimed under each Act that she was unfairly picked for redundancy due to age and discrimination.

1) Industrial Relations Acts CA-00005698-001

The complainant objected to this complaint being heard by an Adjudication Officer.

This complaint has been withdrawn by this action.

2) Protection of Employees (Temporary Agency Work) Act CA-00005698-002

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

No complaint made against the Respondent 1 so no response was warranted.

Findings

I note that the Complainant’s representative advised that there was no complaint under this Act made against this Respondent 1.

Decision:

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

I have decided that no breach of this Act has been alleged by the Complainant therefore no decision is warranted. Therefore this complaint is misconceived.

3) Employment Equality Act CA-00005698-003

Complainant’s Submission and Presentation

The Complainant’s Representative stated that the Bank, Respondent 1 was responsible for the redundancy. She was told that the Bank was going to appoint a directly employed employee instead of an agency worker in the summer of 2015. The position was advertised and she applied but was not successful. She continued to work in the Bank until January 2016. She was then let go and was paid redundancy by the Agency. The Bank had a role in the redundancy and this is evidenced by the emails discussing the redundancy and how to handle it. She believes that the bank funded the redundancy.

She has claimed that she had a number of issues with the Bank concerning being treated less favourably than direct employees of the Bank. Because of her grievances about unequal treatment the Bank ended her placement. She has claimed that she was discriminated against on grounds of age. This is contrary to Sec 6(2) (f) of this Act.

She had been doing the job successfully. There were no complaints about her work. A younger person with less experience was given the post. She believes that she was discriminated against on grounds of her age. She is seeking a determination that she was discriminated against and is seeking compensation.

Respondent’s Submission and Presentation:

The respondent stated that they decided to hire a direct employee rather than an agency worker. They advertised the position. Following a selection process they appointed another agency worker to that position. She was then surplus to requirements. It was the responsibility of the Agency to deal with her employment issues. Another vacancy arose in the autumn but she did not apply for it. The bank made operational changes which resulted in the ending the placement. She had two periods where her placement ended in the past for periods of two months. The Bank did not make her post with the Agency redundant. The Bank did not select her for redundancy. Once the placement ended they had no role whatsoever with the Complainant. Their involvement with the Complainant ended with the ending of the placement. They stated that no comparator was named as is required by this Act. They stated that they did not understand the basis for this complaint against them. This complaint is rejected.

Findings

I find that Sec 8 of this Act places the same obligations on employers as agencies.

I accept that in this case the alleged discrimination by the Complainant is against another agency worker who was successful in the selection process.

I note the conflict of evidence in this matter.

I note that it is alleged that the Complainant was treated less favourably than directly employed employees of the Bank.

I note that she did not raise any formal grievance about these allegations.

I note that these were not cited in her complaints to the Commission and were only raised at the hearing.

I note that the Complainant did not as requested by the Commission set out the basis of her complaint under this Act.

I note that the Respondent stated that they were unaware of the specifics of this complaint and how they might be liable under this Act.

I find that Section 85A of the Employment Equality Acts 1998 – 2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination.

The test for applying that provision is well settled in a line of decisions of the Equality Tribunal and the Labour Court and it requires the complainant to prove the primary facts upon which she relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, 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 required her case cannot succeed. 

Labour Court in the Nolan Transport case stated, ”The normal rule in civil proceedings is that the person bringing proceedings bears the burden of proving every element of the wrong upon which their claim is founded. It is also the normal rule that the party who bears the legal burden of proof also bears the evidential burden. But the burden of proof must be applied in a way that conforms to the requirements of natural justice and the right of the Respondent to mount a defence. This suggests that, at a minimum, the Respondent must know, with reasonable clarity, what it is expected to rebut. This suggests that the evidential burden is on the Claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that, as a matter of basic fairness, the Claimant should be required to do so with sufficient particularity as to allow the Respondent to know, in broad terms, the nature of the complaint and the case which they are expected to meet. As was pointed out by Lord Devlin in Bratty v Attorney General for Northern Ireland [1963] A.C. 386 an evidential burden is satisfied where the evidence adduced is sufficient to “suggest a reasonable possibility”The Respondent should then be called upon to put in evidence showing compliance with the relevant provision in issue. If records in the prescribed form are produced the legal burden will be on the claimant to satisfy the Rights Commissioner, or the Court on appeal, that the records ought not to be accepted as evidence of compliance. Thus the Claimant will bear both the evidential and the legal burden of proving, on the balance of probabilities, that his or her rights under the Act were contravened in the manner alleged. If the Claimant fails to discharge that burden he or she cannot succeed. Regrettably I found significant confusion in the presentation of complaints made by the Complainant’s Representatives, starting with the Complainant objecting to an Adjudication hearing into a complaint that she made under the Industrial Relations Act.

I found that a completely new set of complaints were presented at the hearing in regard to the Protection of Employees (Temporary Agency Work) Act and no submission was received in advance of the hearing setting out her grievance under the Equality Act as is required by the Commission and no comparator was named.

As stated above where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination.

There is an obligation on the Complainant to establish a prima facie case of discrimination before the obligation falls to the Respondent to refute them.

In this case I have found that the Complainant alleges that she was not selected for the post in the Bank because they chose a younger person and because she had raised grievances concerning alleged unequal treatment in comparison to the directly employed employees of the Bank.

I note that the Respondent confirmed that a selection process was put in place. The post was advertised and the Complainant was interviewed. She was not successful.

The Respondent advised that a further selection process took place in the autumn but the Complainant did not apply.

The Respondent advised that she did not raise any grievance concerning unequal treatment with directly employed staff.

I note that the Complainant did not name a comparator either factual or notional.

I find that the Respondent was unaware of the specifics of this complaint. Therefore it must be concluded that the Respondent did not know, with reasonable clarity, what it was expected to rebut.

I find that the Complainant has failed to establish a prima facie case of discrimination.

I find that if the complainant does not discharge the initial probative burden required her case cannot succeed. 

Decision:

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have considered the oral and written submissions of the parties and I have decided that as the Complainant has not established a prima facie case of discrimination then the Respondent is not required to prove the absence of discrimination.

I have decided that this complaint should fail.

Eugene Hanly

Adjudication Officer

Dated   25 April 2017