EDA214

1.Appeal of Adjudication Officer Decision No:ADJ-00021077 CA-00027781-001.

BACKGROUND:

2.This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 83 (1) of the Employment Equality Acts, 1998 to 2015. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 2 December 2019. The appeal was heard by the Labour Court on 21 January 2021 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:

DETERMINATION:

Introduction

This is an appeal by Deirdre Morgan (the Complainant) against the Adjudication Officer’s Decision ADJ-00021077 in her complaint of discrimination on the ground of gender, disability and victimisation by Kildare and Wicklow Education and Training Board (KWETB) (the Respondent). The complaint was made pursuant to the Employment Equality Acts 1998-2015 (the Acts).

The Adjudication Officer did not uphold her complaint.

Background

The Complainant commenced employment with the Respondent as a teacher in September 2000. The Complainant was removed from office by the Minister in June 2015. It is the Complainant’s submission that while the Minister issued a letter on the 15^thJune removing her from office that her employment continued after that date.

The Complainant lodged her claim with the WRC on the 15^thApril 2019. The cognisable period for the purpose of the Act therefore is 16^thNovember 2018 to the 15th April 2019. It is for the Complainant in the first instance as set out by this Court inMitchell v Southern Health Board[2001] ELR 201 to raise an inference of discrimination before the burden shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. In order to raise an ‘inference’ the Complainant must prove the primary facts upon which she relies.

With the consent of the parties the Court proceeded to hear the parties on the preliminary issue of whether or not there wasprima faciean infringement of the Act, and whether or not that this occurred within the cognisable period.

Complainant’s case

It is the Complainant’s case that she was discriminated against by the Respondent on the ground of disability, gender and victimisation during the cognisable period. The Complainant identified the acts of discrimination during that period as follows,

a) Green victimisation at Workplace Relations Commission hearing

b) Denied appropriate measures on the disability ground as she was looking for a gratuity from her pension fund. This application was made in August 2017 and is still on going

c) that she did not have a pension of any kind

d) that in respect of continuous treatment she was put on a different track. She was on an exgratia payment from 2013 to 2015 and she is still pursuing same

e) procurement of victimisation from other bodies by the KWETB for example three times in the Workplace Relations Commission, in November, February and April.

f) Labour Court did not give her a hearing because of documents that were fraudulent that were submitted by her employer.

g) decision made by the Minister in respect of her pension.

It was the Complainant’s submission that these incidents constituted discrimination on the ground of disability, gender and victimisation within the cognisable period.

Respondent’s position

It is the Respondent’s position that there were absolutely no breaches of the Act within the cognisable period. The Complainants employment ceased on the 30^thJune 2015 on foot of a Ministerial Order signed by the Minister on the 15^thJune 2015 directing her removal from office with immediate effect.

The Complainants employment ended at that point. It is their submission that in accordance with the Act the 29^thDecember 2015 was the last date the Complainant could have taken a case unless she could establish exceptional circumstances even then the extended date would have been 29^thJune 2016. The Respondent also pointed to the fact that following the termination of her employment the Complainant took up work with a different employer.

The Respondent submitted to the Court that the Complainant has not made out a prima facia case of discrimination and therefore her claim must fall.

The law

Discrimination in accordance with the Acts is set out in s6 and states:_

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 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”),

( b) that they are of different civil status (in this Act referred to as “ the 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 “ the sexual 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 “ the religion ground”),

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

( g) …….

(2A) Without prejudice to the generality of subsections (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.

(3) ( a ) The age ground applies only in relation to persons above the maximum age at which a person is statutorily obliged to attend school.

( b ) Notwithstanding subsection (1) and section 37(2) , an employer may set a minimum age, not exceeding 18 years, for recruitment to a post.

Discussion

It is for the Complainant in the first instance as set out by this Court inMitchell v Southern Health Board[2001] ELR 201 to raise an inference of discrimination before the burden shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. In order to raise an ‘inference’ the Complainant must prove the primary facts upon which she relies.

InMelbury Developments v Arturs ValpetersEDA0917the Courtstated“ 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”.

The Court, having carefully considered the incidents identified by the Complainant and the Respondent’s response to same as set out above, finds that in the circumstances of this case the Complainant has not made out a ‘prima facie’case and therefore her claim cannot succeed.

The Court also notes that the Complainant’s employment with the Respondent had ceased in June 2015 almost four years earlier. However, as the Court has decided that the Complainant has not raised an inference of discrimination within the cognisable period the Court does not need to consider thelocus standiof the Complainant to make a complainant under the Act.

Determination

For the reasons set out herein, the Court is satisfied that the Complainant was not discriminated against on any of the ground raised by her and therefore her claims must fail. The Complainant’s appeal cannot succeed, and it is dismissed. The Decision of the Adjudication Officer is varied to reflect the determination of the Court that there were no breaches of the Act.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
MK	______________________
9 February 2021	Deputy Chairman