EDA1835

The Adjudication Officer found that the Complainant failed to establish a prima facia case of discrimination.

Background

The Complainant is a Romanian national and has been a lecturer in the School of Engineering in Galway Mayo Institute of Technology since 2000. It is the Complainants contention that he is being treated differently to other Colleagues. In particular, he is treated differently in respect of the Courses he is being assigned to, the stability of his hours, the advance notice that he is given in relation to changes to his timetable, and the opportunity to teach in his area of expertise. The Complainant confirmed that his area of expertise is Automation and Control. The Complainant has identified a number of comparators in support of his case and claims that there has been a continuum of discrimination going back to the year 2,000 when he commenced lecturing.

The Respondent disputes that they are discriminating against the Complainant. It is their position that Courses and hours assigned can vary for a number of reasons from semester to semester and that the Complainant was treated no differently that other staff with similar experience. It is the Respondent's contention that the Complainant now has a full-time contract of indefinite duration unlike some of his comparators.

The cognisable period in respect of this claim for the purpose of the Act is the 16^thJune 2014 to 15^thDecember 2014.

Complainant’s case

It is the Complainant’s case that he has been treated less favourably that his comparable colleagues on the ground of race. The complainant cites the fact that the Respondent denied him a Contract of Indefinite Duration in 2011 and that he has been used repeatedly to fill gaps in the timetable and replace other lecturers when they go on leave (replacement modules.) In support of this contention the Complainant supplied spreadsheets which had been given to him by the Respondent showing the assignments for 25 staff in the Engineering department for the years 2009/2010 to 2016/2017 inclusive. He drew the Courts attention to two of his comparators who he contended were facilitated with hours in their areas of expertise and who had less replacement modules than he had. It is also his contention that he is being assigned a disproportionate amount of replacement modules, tutorials and labs. The Complainant had applied for over 20 lecturing posts during his tenure with the Respondent and had only been short-listed for interview on a number of occasions. In relation to an act of discrimination within the cognisable period. It is the Complainants contention that he was discriminated against in terms of his conditions of work and in particular, the composition of his work in terms of replacement hours and core subjects during that period. The Complainant did not dispute that his assignment during the cognisable period was the same as it was in the period prior to the cognisable period as was evident from the spreadsheet supplied to the Court by the Complainant. The Representative of the Complainant also confirmed to the Court that the Complainant was not alleging that during the cognisable period that the Respondent had assigned hours in the Complainants area of expertise to someone who did not previously have those hours. It was the Complainants position that although his hours in this area had increased during that time these were only a portion of the hours that were previously removed from him.

Respondent’s case

The Respondent denies discrimination on the ground of race. It is the Respondent's contention that there are two ways of becoming a lecturer. One is through open competition where normally the job being advertised is quite specific and the second is the practise of the Respondent to give post graduate students some part time lecturing hours to broaden their experience. This is the route that the Complainant took. The Respondent is of the belief that when it recruits someone for a specific subject they are obliged as far as possible to facilitate them with hours in that subject whereas Lecturers that come through the postgraduate route will as far as possible be given hours within a relevant Department.

In relation to the cognisable period the Respondent did not have any unassigned hours in the Complainant’s area of expertise during that period. It is the Respondent's position that the Complainant and the vast majority of the lecturers had the same assignments during the cognisable period that they had in the previous period. In support of this contention the Respondents representative drew the Courts attention to the spread sheet previously referred to. It is the Respondent's case that the Complainant has failed to raise a prima facie case of discrimination within the cognisable period and that dissatisfaction with not getting his preferences in relation to subjects does not constitute discrimination. The Respondent also highlighted the fact that the Complainant had not linked the treatment that he complained of to racial discrimination.

The applicable law

Discrimination for the purposes of this Act.

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

(a) 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 insubsection (2)(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) 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 ofparagraph (a), constitute discrimination.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground")

(b) that they are of different F15[civil status](in this Act referred to as “theF15[civil status]ground”),

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “thesexual orientation ground”),

(e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “thereligion ground”),

(f) that they are of different ages, but subject tosubsection (3)(in this Act referred to as “theage ground”),

(g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “theground of race”),

(i) that one is a member of theTravellercommunity and the other is not (in this Act referred to as “theTraveller community ground”).

(2A) Without prejudice to the generality ofsubsections (1)and(2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

Discussion and determination

The Complainant alleges that he was discriminated against on the grounds of race. In a claim of discrimination under the Act it is for the Complainant in the first instant to establish surrounding or primary facts which could lead to an inference that discrimination has occurred before the burden of proof shifts to the Respondent. There is a three-tiered test for establishing if the burden shifts to the Respondent which is often referred to as the “Mitchell” test.

It provides: -

• 
  1) It is for the Complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination. If the Complainant fails to do so. he or she cannot succeed.

  2) If the primary facts relied upon are proved, it is for the Adjudication Officer/Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination.

  3) If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the Respondent,(Mitchell v Southern Health Board [2001] ELR 201)

The Adjudication Officers decision is upheld and the appeal fails.

The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
LS______________________
29 June 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.