FULL RECOMMENDATION
PARTIES : FLANNERYS BAR LTD, FLANNERYS BAR GLASHEEN LTD, DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s). ADJ-00021483 CA-00027723-008. Background The Complainant was employed with the Respondent as a Part-time Chef at the Respondent’s business from 9th May 2018 to the 14thMarch 2019. The Complainant lodged his complaint of discrimination in the grounds of disability along with a number of other claims with the WRC on the 12thApril 2019. The cognisable period for the purpose of this Act, is 13th October 2018 to the 12thApril 2019. Complainant’s case It is the Complainant’s case that he was discriminated against by the Respondent on the ground of disability. The Complainant submitted written statements outlining his case which he read into the record. It was the Complainant’s submission that he has attention deficit disorder and asthma and that he was discriminated against because of his disabilities. The Complainant does not dispute that on his employee starter form he only mentioned his asthma. It is his submission that during the cognisable period he was required to work in a kitchen that was smoky because of coal and wood fires in the bar below and that the kitchen was not well ventilated. It was his submission that this impacted on his asthma and was discriminatory. The Complainant confirmed to the Court that all other kitchen staff worked in the same conditions, and he was not aware of whether or not any of those staff had a disability. Respondent’s position It is the Respondent’s position that the Complainant was not discriminated against. They were not aware of the issue he raised in respect of the kitchen and if this was an issue it affected all kitchen staff and was in no way linked to his disability. It is the Respondent’s submission that the Complainant has failed to identify a breach within the cognisable period or at all and therefore his complaint must fail. 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) ….. ( b) ….. ( c) ……. ( d) ….. ( e) ….. ( f)….. ( g) that one is a person with a disability and the other either is not or is a person with a different disability (h)…… (i)…… 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 he 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 incident 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 of discrimination on the ground of disability and therefore his complaint cannot succeed. Determination For the reasons set out above, the Court is satisfied that the Complainant was not discriminated against on the ground of disability and therefore his complaint must fail. The Complainant’s appeal cannot succeed, and it is dismissed. The Decision of the Adjudication Officer is affirmed. The Court so determines.
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