Complainant

Respondent

Anonymised Parties

A Worker

An Accommodation Provider

Representatives

N/A

N/A

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-00030649-001

04/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030649-002

04/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00030649-007

04/09/2019

The complainant started employment on 1st August 2018. He claimed that he did not receive a contract of employment, that he was discriminated against and that a number of complaints he made were not handled effectively.

CA – 00030649 -001:

The complainant stated that he was discriminated against in relation to the payment of holiday pay, following the transfer of his employment to the respondent.

He also alleged that he was discriminated against because holiday payments were not made to him prior to his holiday.

He also claimed that respondent discriminated against him by inferring that he had a mental disability when reference was made to his poor numerical skills and to certain emails that he sent.

It was also alleged that he was discriminated against by not being allowed take annual leave.

He also claimed that he was discriminated against by being asked to carry out cleaning tasks which were not included in his contract of employment.

He also alleged that when he sought support from management to assist him in politely ending a conversation, he was informed that they would arrange ABC training for him. He stated that he considered this remark to be discriminatory on the basis that he is a foreign national.

He also claimed that he was discriminated against because he does not receive set monthly hours each month.

CA – 00030649 -002:

The complainant acknowledged receipt of a contract of employment from his former employer but stated that he had not received any such document from his current employer.

CA – 00030649 -007:

He also alleged that the employer never concluded a formal investigation into his grievance.

CA – 00030649 -001:

The respondent denied that it discriminated against the complainant on any of the grounds set out in the Act.

CA – 00030649 -002:

The respondent stated that the complainant’s terms and conditions of employment transferred to the respondent under the TUPE Regulations and highlighted that he had received a written statement of his terms and conditions of employment from his previous employer.

CA – 00030649 -007:

The respondent claimed that the complainant made the investigator aware that he did not wish to engage with the grievance process because he had referred the matter to the WRC and would not provide her with the evidence she requested.

CA – 00030649 -001:

Findings:

The complainant made a number of allegations of discrimination against the respondent.

Discrimination on the grounds of race

The complainant claimed that when he sought support from management to assist him in politely ending a conversation, he was informed that they would arrange ABC training for him. He stated that he considered this remark to be discriminatory on the basis that he is a foreign national.

The Law

Section 85A of the EEA 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 and it requires the complainant to prove the primary facts upon which they rely 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. The appropriate test for determining is that if the complainant does not discharge the initial probative burden required the case cannot succeed.

It is now well accepted that the first requirement for a successful claim lies in establishing a prima facie case. In that regard, I am conscious of the Labour Court’s comments in examining the circumstances in which the probative burden of proof applies in employment equality cases. In the case of Dyflen Publications Limited and Ivana Spasic (ADE/08/7) the Court adopted the approach of Mummery LJ in Madrassy v Nomura International plc [2007] IRLR 246, and stated that

“… the court should consider the primary facts which are relied upon by the Complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the Respondent ..”.  

In establishing the facts to meet the burden of proof resting on a Complainant, the Labour Court commented in Cork City Council v McCarthy [EDA 0821] as follows:

  “The type or range of facts which may be relied upon by a Complainant may vary significantly from case to case. The law provides that the probative burden shifts where a Complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a fact or a set of facts which are proved in evidence. 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 proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

Further, in Valpeters v Melbury Developments Limited [2010] ELR 64 it is stated as follows:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the 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. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.

Having considered the evidence from the complainant, I find that he has not discharged the initial probative burden because he has failed to establish facts from which discrimination on the grounds of race may be inferred.

Discrimination on the grounds of disability

The complainant stated that the respondent discriminated against him by inferring that he had a mental disability when reference was made to his poor numerical skills and stupid emails that he sent.

In order to establish a prima facie case of discrimination on the grounds of disability, the Complainant must firstly prove that he had a disability at a time material to his claim and secondly, he must prove that the Respondent was on notice that he had a disability.

Given that the complainant stated that he does not have a mental disability however, I am satisfied that he has not established a prima facie case of discrimination on the grounds of disability.

Discrimination - Other

The complainant also alleged that he was discriminated for a number of other reasons, namely for derogatory remarks he made to a co-worker, for being asked to assist with cleaning, for not being protected by the respondent when he was bullied and for difficulties in relation to the payment of holiday pay as well as wages. Given that he was unable, when questioned, to say on which grounds he was discriminated against in relation to these allegations, I am satisfied that he has failed to establish a prima facie case of discrimination under any of the grounds set out in the Act.

CA – 00030649 -002:

Given that the complainant acknowledged receipt of a contract of employment from his former employer and that his terms and conditions of employment transferred to the respondent under the TUPE Regulations, I am satisfied that he received a written statement of his terms and conditions of employment.

CA – 00030649 -007:

The complainant invoked the formal grievance procedure in August 2019 and the respondent commenced an investigation into the allegations he made. During this investigatory phase however, the complainant made the respondent aware that he did not wish to engage with the process because he had referred the matter to the WRC.

CA – 00030649 -001:

Given that the complainant has failed to establish a prima facie of discrimination on the disability or the race grounds or indeed on any of the grounds set out in the Act, his complaint cannot succeed.

CA – 00030649 -002:

Given that the complainant acknowledged receipt of his written terms and conditions of employment, I decide that this complaint is not well founded.

CA – 00030649 -007:

Given that the complainant failed to exhaust the internal grievance procedures, prior to referring the matter to the WRC for investigation, I cannot make a recommendation that is favourable to him.