Complainant

Respondent

Anonymised Parties

A Job Applicant

A Solicitor Firm

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00028439-001

15/05/2019

The complainant detailed that he was discriminated against on the gender and age grounds and that he was victimised.

I have exercised my discretion to anonymise this decision.

The complainant detailed his wish for the decision to be anonymised as he suffers with hypertension and panic attacks and that he had concerns that naming him could affect his health and go against him when looking for other jobs.

The complainant submitted that he applied for a job as a legal secretary with the respondent and was called for interview on 1st February 2019. The complainant outlined that he believed the interview went well and that he answered the questions put to him in an appropriate and professional manner.

It was submitted that the complainant did not hear anything back from the respondent and he then became aware that the position had been advertised again by the respondent.   The complainant outlined that he was upset at this as he still did not hear anything back from the respondent and he wrote to them on 8th April 2019 querying this. The respondent advised him that that he was not successful but did not give him a reason why.

It was the complainant’s belief, based on advice that he had received from an advisory organisation, that he had been discriminated against on the basis of gender and age.   The complainant submitted that he was discriminated against as he was considered too old for the role and outlined that he was aged 38 and was older than the person who greeted him at the door of the solicitor’s practice.

The complainant outlined that he had been discriminated against on the basis of gender as most legal secretaries would be female.

The complaints, submitted to the WRC on 15th May 2019, detailed that the most recent date of discrimination was 1st February 2019 . The complainant received a letter dated 24th May 2019, from the respondent detailing that they were putting the complainant on notice that :

“We are satisfied that your complaint is completely without foundation, frivolous and vexatious and doomed to fail. We are now formally putting you on notice that on conclusion (sic) this matter, we shall be bringing separate Circuit Court proceedings against your(sic) personally to recover this firm’s costs and outlay in having to deal with this groundless complaint. Please note that this letter shall be produced to the Court in our application for costs against you”.

The complainant expressed his outrage at what he regarded were scurrilous remarks by the respondent during the hearing when they detailed that they believed that it was not the first time that the complainant had taken complaints to the WRC.  

The complainant denied that his complaints were frivolous or vexatious.

The respondent refuted the complaints and detailed their wish that parties be named in the decision owing to what they regarded as the frivolous, and vexatious nature of the complaints.

The respondent outlined that the complainant was the only person interviewed for the job and that the position has not been filled. It was outlined that there are only 4 people working in the office, the youngest of whom is aged 40 and therefore the complainant would have been younger than any of those there. The employee who greeted the complainant at the door was an apprentice solicitor who is no longer with them.

The respondent detailed it was within their right to advise the complainant that they were putting him on notice that they would bring separate court proceeding against him to recover costs associated with what they regarded as a groundless complaint.

The respondent submitted that it had come to their attention that the complainant has submitted other complaints against other organisations of a similar nature and in response to the complainant’s denial, they detailed the name of another solicitor firm whom the complainant was alleged to have engaged with in a similar manner, looking for expenses.

I have considered the request by the complainant for the decision to be anonymised and the request by the respondent for parties to be named. Taking into consideration all of the evidence, I have taken the decision to anonymise this decision.

The complainant detailed that he applied for a job and was unsuccessful. The complainant detailed that he was discriminated against in securing the job owing to his gender, owing to his age and that he was victimised. The respondent refuted the allegations.     The complainant expressed his outrage at comments made by the respondent that it was not the first time that the complainant had submitted such complaints. The hearing adjourned for a short time and resumed a short time later.

Section 85A (1) of the Act states: “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.”   This means that the Complainant must establish primary facts upon which the claim of discrimination is grounded and then the burden of proof passes to the Respondent. In Determination EDA082 McCarthy v Cork City Council the Labour Court pointed out that at the initial stage the complainant is merely seeking to establish a prima facie case. 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 facts proved. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.

In Melbury Developments v Arturs Valpeters the Labour Court, whilst examining the circumstances in which the probative burden of proof operates, stated that a complainant "must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn". It added that "the burden of establishing the primary facts lay fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule”.

Discrimination on the Gender grounds:

The complainant outlined that it was upon the advice from somebody else that he believed he may have been discriminated against on the gender ground. The complainant outlined that a legal secretary is often female and therefore he was discriminated against because of his gender as he is male. The respondent detailed that the last legal secretary they had was male and that the complainant was, in fact, the only person interviewed for the role.

Section 6. details “— 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 in subsection (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 of paragraph (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”),

The complainant has not established any credible facts from which discrimination may be inferred. The complainant has not established a prima facia claim of discrimination on the gender ground.

Discrimination on the Age grounds:

The complainant outlined that it was upon advice from somebody else that he believed he may have been discriminated against on the age ground. I note that the complainant was unsure at first whether he was discriminated against on the basis that he was too old for the job or deemed too young for the   job. He ultimately outlined that he believed that he was considered too old by the respondent, as the person who greeted him on the day of the interview was younger. I note that the ages of all those employed by the respondent are aged 40 upwards and are older than the complainant. I also note that the person who greeted the complainant at the door was an apprentice solicitor.

Section 6. details “— 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 in subsection (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 of paragraph (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—

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

The complainant has not established any credible facts from which discrimination may be inferred. The complainant has not established a prima facia claim of discrimination on the age ground.

Victimisation:

The complainant details he was victimised.

Section 74 of the Acts defines victimisation in the following manner

— (1) In this Part, unless the context otherwise requires…..

victimisation” shall be construed in accordance with subsection (2)

(2) 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 2000or 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.

The complaint was received by the WRC on 15th May 2019 and set out that 1st February 2019 was the most recent date of discrimination. I have found no evidence of victimisation up to the time submitted by the complainant and in those circumstances the complaint of victimisation must fail.

Frivolous and Vexatious

To ensure completeness the respondent detailed that the complaints submitted were vexatious and frivolous; an allegation that the complainant denied.

The meaning and scope of the words ‘frivolous and vexatious’ were set out by a decision of the Supreme Court by Barron J in Farley v Ireland & Ors [(1997) IESC 60, in which it stated:

‘So far as the legality of the matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed and the law calls that vexatious.’‘

In Fay v Tegral Pipes Limited & Ors [[2005] 2 IR 261], McCaracken set out that the Supreme Court

“While the words “frivolous and vexatious” are frequently used in relation to applications such as this, the real purpose of the jurisdiction is to ensure that there will not be an abuse of the process of the courts. Such abuse cannot be permitted for two reasons. Firstly, the courts are entitled to ensure that the privilege of access to the courts, which is of considerable constitutional importance in relation to genuine disputes between parties, will only be used for the resolution of genuine disputes and not as a forum for lost causes which, no matter how strongly the party concerned may feel about them, nevertheless have no basis for a complaint in law. The second and equally important purpose of the jurisdiction is to ensure that litigants will not be subjected to the time consuming, expensive and worrying process of being asked to defend a claim which cannot succeed.”

I do not uphold that the complaints submitted were frivolous or vexatious.

In reaching my decision, I have taken into account all of the submissions, that were made to me.

I find that the complainant has failed to establish a prima facia case of discrimination on the age grounds and it is not well founded and I dismiss the complaint.

I find the complainant has failed to establish a prima facia case of discrimination on the gender grounds and it is not well founded and I dismiss the complaint.

I find the complainant has failed to establish a prima facia case of victimisation and it is not well founded and I dismiss the complaint.

Equality, age, gender, victimisation, frivolous and vexatious