EDA1846

The Adjudication Officer held that the Complainant had not established facts upon which it can be presumed that he was subject to discriminatory treatment on the age ground or ground of race.

The Complainant appealed the decision of the Adjudication Officer to the Labour Court on the 28^thSeptember 2017.

Background

The Complainant in his initial submission raised a number of issues that did not fall within the remit of the Court. He also sought to make allegations on grounds of discrimination that were outside the nine grounds set out in the legislation and requested that the Labour Court grant him free legal aid to assist with pursuing his claim. The Court in accordance with the Labour Court Rules (Employment Rights Enactment) Rules 2016 Rule 15 used its discretion to require the parties to attend a case management conference. This case management conference took place on Thursday 8^thFebruary 2018. In the course of the case management conference the Court clarified for the Complainant that components of his complaint fell outside the jurisdiction of the Court. In respect of the issues that could be processed under the Act the Court set out for the parties the time limits that were applicable in relation to these claims. The Complainants original complaints were received by the WRC on the 1^stJuly 2015. For the purpose of the Act the cognisable period is 2^ndJanuary 2015 to the 1^stJuly 2015.

The Complainant was then afforded a period of three weeks to make a further submission in relation to the specific complaints he was making under the Act and the Respondent was afforded an opportunity on receipt of same to respond if they wished. Following the case management conference, the Complainant sought to continue engaging with the Court in relation to issues that were not within the jurisdiction of the Court. On the 22^ndof March 2018 the Court received a letter from the Complainant, half way down page two of the letter under the heading “Grounds of Appeal”, four bullet points were set out which the Complainant stated formed the basis of his appeal. The Respondent on receipt of this correspondence informed the Court that it intended to rely on its original submission. The case was then scheduled for a hearing.

Complainant’s case

The Complainant applied for positions with the Respondent in February 2014, September 2014 and on the 3^rdFebruary 2015 and was unsuccessful on each occasion. It is his contention that on each occasion the Respondent discriminated against him on the basis of age and race.

In his evidence to the Court the Complainant stated that the act of discrimination on the race ground related to a telephone interview he had on the 17^thSeptember 2014 where he was not progressed to the next round and therefore did not get the Job. It is his contention that the reason he did not get the job was because of his nationality.

In relation to his claim of discrimination on the ground of age it was his evidence to the Court that he applied for a job in February 2015 and did not get the job because of his age. It was his contention that only younger people were employed by the Respondent.

Respondent’s case

The Respondent’s representative in his submission to the Court denied that the Complainant had in any way been discriminated against. It was the Respondent submission that the Complainant’s CV did not contain his age or his nationality and therefore these issues could not have influenced the decision not to progress the Complainant to the next stage of the process on any occasion. A copy of the Complainant’s CV was included as an appendix to the Respondent’s submission. The issues raised by the Complainant relate to a telephone interview in 2014 and a CV screening in 2015. It is the Respondent’s position that the 2014 issue falls outside the scope of this claim. The 2015 application was by submission of CV. The Complainant’s age or nationality were not contained in his CV. The decision maker in relation to not progressing his application to the next stage therefore would not have been aware of either his age or his nationality. The Respondent informed the court that its work force demographic covered a wide range of ages and nationalities and provided a table as part of its submission to support that statement.
The Respondent refutes in the strongest terms any allegations of discrimination.


Onus of Proof

The Court in the case of Mitchell v Southern Health Board [2001] ELR 201 set out the test for establishing if the burden of proof shifts to the Respondent. In that case the Court held:

“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.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.”