ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00017749

Parties:

6th June 2019

2nd April 2019

Complaint:

Date of Adjudication Hearing: 06/06/2019

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 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.

The Complainant’s representative sought that this decision be anonymised. I have agreed to that request given the sensitivities of this case.

Background:

Summary of Complainant’s Case:

It is submitted that the Claimant herein was engaged on a contract which consisted of an agreement to personally carry out work for the Respondent. It is submitted therefore that the Claimant’s contract with the Respondent was a “contract of employment” and that the Claimant was therefore an “employee” for the purposes of the 1998 Act. The definition of “contract of employment” contained in Section 2 of the 1998 Act reflects an amendment made by Section 3 of the Equality Act 2004. The full long title of the 2004 Act confirms that the Act is intended to give effect to EU “Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation”. Article 3.1 of 2000/78/EC, which establishes the general framework regarding equal treatment in the workplace states that “Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to: (a) conditions for access to employment, to self-employmentor to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion….”. It is submitted that the contents of Article 3.1 as set out above make clear that EU law requires that self-employed persons be included in protections afforded to workers against discrimination. It is submitted that the above cited provisions of EU law remove any doubt that a person engaged under a contract for services is entitled to avail of the protections against discrimination and victimisation contained in the 1998 Act.The explanatory memorandum of the Equality Act 2004 states that “new definitions of ‘‘contract of employment’’ and of ‘‘employee’’ are provided, the effect of which is to include self-employed persons within the scope of the Act as required under Article 3.1 of Directives 2000/43/EC and 2000/78/EC”. It is submitted that the above statement in the explanatory memorandum to the 2004 Act make clear that the intention of the legislature in enacting the amendment to Section 2 of the 1998 Act brought about by Section 3 of the 2004 Act was to comply with the requirements of EU law that self-employed persons and be included among the persons entitled to avail of the 1998 Act.

Before the introduction of the amendments made by Section 3 of the 2004 Act, Section 2 of the 1998 Act read as follows;

““contract of employment” means, subject to subsection (3)—

(a) a contract of service or apprenticeship, or

(b) any other contract whereby an individual agrees with a person carrying on the business of an employment agency, within the meaning of the Employment Agency Act, 1971 , to do or perform personally any work or service for another person (whether or not that other person is a party to the contract),….”

Therefore the amendment effected by the legislature by virtue of the 2004 Act was the insertion of the following text to expand the definition of “contract of employment”: “(b) any other contract whereby— (i) an individual agrees with another person personally to execute any work or service for that person,…”

It is submitted therefore that the legislature was demonstrating a clear intention, mandated by the State’s obligations under EU law to expand the definition of contract of employment, and therefore the protections afforded by the 1998 Act to workers engaged under a contract for services.

54. In the 5th edition of “Employment Equality Legislation Annotated” Anthony Kerr SC states in respect of the amendment effected by Section 3 of the 2004 Act that “the extended definition inserted by virtue of the Equality Act 2004 is designed to ensure that self-employed persons come within the scope of the Act as required by Directives 2000/43/EC and 2000/78/EC.1”

Employment Equality Legislation, Anthony Kerr SC 5th ed. At L-166

In Danosa (C-232/09) the CJEU found that the EU law protections against discrimination, in that case the protections afforded in respect of pregnancy, were not to be confined to situations which were governed by a contract of service. In that case, the Court held that “the essential feature of an employment relationship is that, for a certain period of time, a person performs services for and under the direction of another person, in return for which he receives remuneration…”.

56. It is submitted that the contents of the contract between the Claimant and the Respondent represent a “contract of employment” for the purposes of the 1998 Act and that the Claimant is therefore an “employee” for the purposes of the 1998 Act and entitled to the protections of the 1998 Act. It is submitted that the case law cited above indicates that the Claimant is entitled to the protection of the 1998 Act as a matter of EU law. All of the above is without prejudice to the Claimant’s submission that his contract with the Respondent is one “of service” rather than “for services”.

Burden of Proof

Section 85A(1) of the 1998 Act provides the following in respect of the burden of proof in claims of discrimination, harassment, sexual harassment and victimisation: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.” (emphasis added) It is submitted that the Claimant has established a sufficient factual basis for the WRC to presume that discrimination took place at his employment It is therefore for the Respondent to provide evidence that the Claimant was not discriminated against. It is submitted that the oral evidence of the Claimant, together with the documentary evidence provided by him, provide a prima facie case that the Respondent discriminated against the Claimant. In Cork City Council v. MacCarthy EDA 08212 the Labour Court indicated that it was not necessary, in order for a Claimant to meet the initial burden under the 1998 Act, that the facts established allowed only an interpretation that a claimant had been discriminated against. It held

“Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

63. It is submitted that the burden of proof, in light of the decision of the Labour Court in MacCarthy, is a low one and the Claimant is not under a duty to prove to the satisfaction of the Adjudicator that discrimination was the only possible explanation for the conduct of the Respondent. The Claimant need only demonstrate that discrimination is one of a range of inferences that could be drawn from the Respondent’s conduct.

In ICTS (UK) Limited v. Magdi Ahmed EDA 3/20043 the Labour Court stated that the evidential burden placed on a claimant under the 1998 Act may be discharged by providing unsupported oral evidence of discriminatory acts. It stated: https://www.workplacerelations.ie/en/cases/2004/january/eda043.html

“In cases such as this what is ultimately in dispute between the parties is whether or not the discriminatory remarks alleged were actually uttered. This is what is often technically referred to as the fact in issue. Where the primary facts upon which the claim of discrimination is based are also the fact in issue, the application of the Mitchell test places the entire probative burden on the complainant. This may impose a higher standard of proof on the complainant then is envisaged by the law. In these type of cases it could cogently be argued, on the basis of the case law of the ECJ, that the burden on the complainant is an evidential one which could be discharged by giving credible (but not necessarily conclusive) sworn testimony of what is alleged. This approach, while attractive, may not be entirely consistent with the language used in the relevant Directives.”

65. The Court went on in that case to describe the other factors that may be used in order to assess whether the burden placed on a complainant had been discharged. It stated:

“It is common case that the complainant became agitated in the course of the interview, that he sought to speak to the interviewer's supervisor and then that he then terminated the interview abruptly. This is evidence pointing to the occurrence of something untoward although both parties have totally contradictory versions as to its cause. When taken in the context of the evidence as a whole, the Court would not consider these facts as sufficient to establish a prima facie case of discrimination in this case. They may, however, be sufficient when combined with the 17

It is submitted that in line with the Court’s comments in ICTS (UK) there is sufficient extraneous evidence to support the Claimant’s case in the instant proceedings.

It is submitted that the credible evidence provided by the Claimant in the instant case is sufficient to discharge the burden imposed on a Complainant by Section 85A and therefore the burden of proving that discrimination did not take place is placed on Respondent.

It is submitted that the language used in Section 85A(1) provides a relatively low burden on a Claimant to “establish” the facts from which discrimination can be “presumed”, it is for the Respondent to “prove” to the WRC that discrimination did not in fact occur. It is submitted therefore that the burden of proof placed on a Respondent is heavier than that initially placed on a Claimant.

In Gleeson v. Rotunda [2000] ELR 206 the Labour Court, having found that the assertions of the complainant that she had been asked inappropriate questions during an interview was enough to discharge the burden under Section 85A, went on to consider whether the respondent in that case had discharged the relevant burden imposed on it under the 1998 Act. It stated,

“The Court is not satisfied that the respondents have filled this requirement. When challenged to explain to the Court the justification for the appointment, the main justification was that he was a ‘high flier’ who had passed quickly through the various medical posts he held. It was also claimed that he was the ‘most suitable of the applicants and that he had the greater potential’. However, no satisfactory supporting arguments were made to substantiate this position.” complainant’s own testimony if the Court were to be satisfied that he is a reliable witness.”

It is submitted, in light of the Court’s comments in ICTS (UK) that where a complainant provides otherwise credible evidence, his uncorroborated evidence of discriminatory acts may be enough to discharge the evidential burden imposed by Section 85A. It is submitted that the Court’s comments in Gleeson make clear that a respondent is tasked with a significant burden to demonstrate that it has not discriminated and that this burden can only be discharged upon production of relevant evidence. The Court in reaching its conclusions in the case found that the failure of the respondents to keep records of the interview and the relatively opaque nature of the decision making process meant that the burden placed on the respondent under Section 85A had not been discharged. It stated “Based on the information before it, the Court is satisfied that the respondents have failed to rebut the appellant's claim of discrimination. The appellant was better qualified, more experienced and better published than the successful applicant. The respondents confirmed at the hearing that there was no issue of performance, interpersonal skills or other shortcomings identified in the appellant. Taking into account the absence of any prior clarification on the criteria to be used by the interview panel, the lack of any transparency in the selection process, the fact that the claimant was more qualified and experienced than the successful applicant, the other matters referred to in this determination, and in the absence of sufficient evidence to rebut the appellant's submissions, the Court finds that the applicant was discriminated against, under section 2(a) of the Act and section 3 of the Act.” In Fagan v. Revenue Commissioners4 the complainant raised a complaint of discrimination on the grounds of age following a failure to secure promotion despite a good performance and discipline record. In finding for the claimant, the Equality Tribunal was critical of the absence of documentation and independent corroboration of the respondent’s account. It stated “The Labour Court held on a number of occasions that since the facts necessary to prove an explanation that a process was free from discrimination can only be in the possession of the respondent that Court (and therefore this Tribunal) should expect cogent evidence to discharge the burden of proof placed on an employer. The Court further held that it must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discriminatory motive, in the absence of independent corroboration, must be approached with caution. The respondent has failed to furnish a single document to demonstrate how (i) the complainant's failure to be appointed to the acting-up post in February, 2003 and (ii) the complainant's assessment and ultimately, his exclusion from the impugned Promotion Panel in August/September, 2003, were wholly related to factors unconnected with his age. This dearth of records has previously been held by the Labour Court as "an insuperable difficulty" and "impossible" for the respondent to discharge the onus of proof placed upon it. I therefore find that the respondent has failed to rebut the inference of discrimination raised and the complainant's claim is entitled to succeed” It is submitted, in light of the decision of the Equality Tribunal decision in Fagan, that the Respondent in the instant case cannot merely rely on an assertion that it did not discriminate in order to discharge the burden under Section 85A but must instead be in a position to provide independent corroboration of the processes used by it. In A Female Employee v. A Printing Company5 the Equality Tribunal considered a claim that the complainant had been subjected to discrimination on the grounds of gender when a male colleague was promoted in the respondent organisation. The Tribunal, in finding that discrimination contrary to the 1998 Act had in fact occurred, was critical of the failure of the respondent to keep records of its deliberations and decision making. The Tribunal quoted the

following passage from the decision of the Labour Court in South Eastern Health Board v. Brigid Burke: “This Court has consistently commented on the need for Employers conducting interviews to have openness and transparency in their selection process. See in particular Gleeson v the Rotunda Hospital DEE00/3. Where in a case such as this the interview committee met in advance, looked at the two Curriculum Vitae, then decided to set the marking criteria, allocated a substantial number of marks for what can be regarded as the subjective elements of the assessment, and then failed to retain any notes as to how they arrived at that assessment, it would be extremely difficult for them to discharge the onus of proof placed upon them. …… On the basis of the evidence, and for reasons already referred to, Court is satisfied that the selection process was conducted in a manner which fell short of the standards of objectivity, fairness and good practice that could reasonably be expected in the circumstances.” In Igen Ltd v. Wong [2005] EWCA Civ 142 , the UK Court of Appeal endorsed, an amended version of the “Barton Guidance” which was originally set out in Barton v Investec Securities Ltd [2003] IRLR 332 and which consisted of a 13 point set of guiding principles for a court or tribunal in determining whether discrimination, in that case on the grounds of sex, had occurred. Those principles were; “ (1) Pursuant to s.63A of the SDA, it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of s.41 or s.42 of the SDA is to be treated as having been committed against the claimant. These are referred to below as 'such facts'.

(2) If the claimant does not prove such facts he or she will fail.

(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in'.

(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

(5) It is important to note the word 'could' in s.63A(2). At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.

(7) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with s.74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire or any other questions that fall within s.74(2) of the SDA. (8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to s.56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(9) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the respondent. (10) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

(11) To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive.

(12) That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or code of practice.'”

Vicarious Liability

77. Section 15(1) of the 1998 Act provides that

“anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval”

Victimisation

78. Section 74(2) of the 1998 Act provides 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 or the Equal Status Act 2000 or 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.”

It is submitted that the Claimant has been the subject of comments regarding the instant proceedings by employees of the Respondent organisation. It is submitted that information regarding the within proceedings could only have become known to these employees from personnel within the Respondent organisation. It is submitted that the Respondent’s failure to maintain the confidentiality of the Claimant’s complaints and the failure of the Respondent to properly investigate these matters when brought to its attention by the Claimant are incidents of victimisation.

It is submitted that the actions of the Respondent’s employees in verbally harassing the Claimant are incidents of victimisation for which the Respondent is vicariously liable.

It is submitted that the treatment of the Claimant by the Respondent in the period since he raised his complaints amounts to victimisation.

Redress 24

Section 82(1)(e) of the 1998 Act provides “an order that a person or persons specified in the order take a course of action which is so specified;”

It is submitted that the above cited legislative provision entitles the WRC to make an order that the Respondent award the Claimant a FIFA badge. It is submitted that the Claimant has been wrongfully denied career progression within the Respondent organisation on account of having a disability for the purposes of the Act. It is submitted that the Claimant’s disability is the sole reason for his having been denied a sufficient quota of quality match appointments by the Respondent and is the sole reason that the Claimant was not awarded a FIFA Badge in October 2018. It is therefore submitted that the instant case is an appropriate case for the WRC to exercise its power under Section 82(1)(e) of the 1998 Act.

It is submitted that the ongoing discrimination and victimisation being suffered by the Claimant is having a severe impact on the Claimant’s career progression. It is submitted that compensation alone will not sufficiently address the damage caused to the Claimant, who has invested an enormous amount of time and effort in pursuing his career as an assistant referee.

Without prejudice to the above, the Claimant claims compensation in respect of the discrimination and victimisation suffered by him.

Summary of Respondent’s Case:

The Respondent advised the hearing that in the interests of moving this dispute forward they accept the following:

Findings and Conclusions:

1. a) Eligibility to present a case to the WRC

I note the Respondent’s evidence that a decision was taken by the person responsible for making these arrangements to withdraw the Complainant from refereeing matches as an interim measure.

Based on the Respondent’s evidence which I found to be compelling it was not necessary to have a committee decision.

I find that the Respondent consulted their medical adviser and had the Complainant examined by an expert.

I find that by 5th April the Complainant was cleared to continue refereeing matches.

I accept that this decision to withdraw the Complainant from refereeing matches was an interim measure.

I find that the Respondent acted in a prudent manner, which was reasonable and responsible under the circumstances.

I find that the matter was addressed within four weeks.

I find that the Respondent has presented a non-discriminatory explanation for the treatment.

I find that this part of the claim fails.

2) Telephone call between EF and the Complainant

I note that the Complainant alleged that EF stated that the Complainant’s progression was being impacted upon by his disability.

I note that EF denied ever making that statement.

I note that EF stated that this was a complimentary conversation and that the Complainant had assured EF that his Consultant was confident that he would not have more fits.

I note that there were other matters discussed such as refereeing badge.

I find that there was a direct conflict of evidence.

I did not find any evidence to support the allegation that EF had stated that the Complainant’s progression was impacted upon by his disability.

I find that this part of the claim fails.

3) Refereeing Badge

I note that the Complainant has alleged that the granting of the refereeing badge has been hindered because of his disability. He alleged that EF told him this during his telephone call with him.

It is alleged that EF stated that due to the Complainant’s medical difficulties over the previous number of years it would make the granting of the badge less likely.

It is alleged that EF advised him in that conversation that the Respondent organisation may take the Complainant’s disability into account in deciding whether to award the badge.

I note that the Respondent has denied making that statement.

I note that the Respondent stated that it is not within their ‘gift’ to award the badge, that is done by the governing body.

The Respondent advised that they can nominate persons to be considered only.

They advised that completing the Core Programme does not automatically give a person a right to a badge.

The Respondent stated that their primary objective is to have sufficient referees to officiate at their games.

They advised that the WRC cannot make a declaration to award a badge to the Complainant as it is not within the remit of the WRC or the Respondent to do so.

It is accepted that a person expecting to be nominated for a badge consideration would need to have a number of premiership games experience.

They stated that every year there are opportunities to nominate persons for the badge. Consideration is given to both hard competencies, e.g fitness and knowledge and soft competencies e.g. ability to work together. The Respondent tries to ‘school’ people to meet those.

They advised that the Complainant has shown competencies but there are already eight male and one female in situ, who are better qualified and more experienced than the Complainant. Those persons must be accommodated first.

They stated that the Core Programme was set up to prepare future referees, but it has created a backlog as there is no automatic right to a badge and the numbers are capped.

I find that the Respondent has provided clear evidence how it operates and nominates persons for the badge within the existing constraints.

I found no evidence of discriminatory actions.

I have found credible non-discriminatory explanations for their actions.

I find that this part of the claim fails.

4) Not given priority matches

I note that the Complainant has alleged that he is not given priority matches because of his disability.

I note that the Respondent set out how it allocates the teams of refereeing officials for the games.

I note that it based on a number of factors including availability, geographical spread and the ability to arrange panels to travel together so as to minimise the costs.

They also pointed out that the Complainant had been nominated to a number of prestigious European games.

I find that the Respondent has provided clear evidence how it operates and nominates persons for the badge within the existing constraints.

I have found credible non-discriminatory explanations for the Respondent’s actions.

I find that this part of the claim fails.

5) Victimisation

I note that the Complainant listed a number of instances where he believes that he is being victimised, in particular by statements/comments being made about his complaints and reference to solicitors which means that this must have been discussed by senior management with other people within the organisation, which breached confidentiality.

I note that the Respondent has appointed a Barrister to carryout an independent investigation into allegations of victimisation.

I find that this is an appropriate response to this allegation.

I find that this process must be brought to a conclusion and therefore it is not appropriate to make any adjudication on this part of the claim.

Overall

I have given careful consideration to the complaints and the responses.

I have concluded that the Respondent has provided credible non-discriminatory explanations for their actions.

I have not found evidence of discriminatory practice.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

For the above stated reasons, I have decided that this complaint is not well founded and so it fails.

Dated:   8th August 2019

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words: