ADJUDICATION OFFICER DECISION

 Adjudication Reference:  ADJ-00014147

Parties:

Complaints:

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000 (the Act), following the referral of the complaint to me by the Director General, I inquired into the complaint and I firstly considered as a preliminary matter if the complainant had detailed his claim so that that the respondent could reasonably prepare a reply to accede or defend the claim. On the 26th March 2019 the Workplace Relations Commission wrote to the complainant requesting such a statement and to date none has been received.

Background:

Preliminary Matter

The onus of proof is on the complainant to establish a prima facie test before the respondent is required to rebut the allegations being made against them.

Equality Officers previously have consistently applied the Labour Court statement in Mitchell v Southern Health Board [2001] ELR 201 to explain what a complainant must do. The Labour Court in several determinations have repeatedly emphasised that the facts must be significant to give rise to such an inference and in a recent case Public Appointments Service and Mr Bernard Lester [EDA 2022] the Court detailed what this meant:

Discussion and Decision

Section 85A (1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“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 Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“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 or 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 particular 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.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Having regard to the submissions of the Parties in this case, and the extensive correspondence between them opened in the course of the appeal, the Court is of the view that the Complainant does not meet the burden of proof required by section 85A (1) of the Act. The Complainant’s case is grounded largely on his belief that it was sufficient for him to list out his work-related experience in his application form submitted in February 2018 to PAS and this act alone should have guaranteed him progression to the interview stage of the recruitment process. In fact, it was incumbent on the Complainant himself to demonstrate to the Shortlisting Board in his written application - having regard to his undeniably extensive professional experience - that he met the criteria listed in the advertisement for the position so as to merit being shortlisted for interview.

Section 38 A states:

38A. — (1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

However on the facts detailed in the complaint form there are no facts given that constitute a prima facie case. This test requires that the complainant would detail facts that show (based on the ground being relied upon that he was treated less favourably than another comparator) and they indicate that there is a real possibility of discrimination and so raise an inference of discrimination. The test does not have  to show a real probability of discrimination; but the facts must have a significance that give rise to a presumption of discrimination that in turn must be rebutted. That threshold has not been met in this case.

The complainant has been given an opportunity to provide more detail so that the respondent would know what allegations are being made against them. The complainant is also an experienced litigant having brought many such cases under the Equal Status Act 2000 as amended. However, no additional statement has been provided. Therefore I must consider this matter on the facts before me and in the absence of a prima facie case, I have formed the opinion that the complaint is misconceived. Section 22 of the Act provides that a complaint may be dismissed if the opinion is formed that the claim is misconceived, as I have formed that opinion I dismiss all 4 complaints: CA-00018361; CA000186362; CA-000186363 and CA-00018364.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act. However, section 22 of the Act provides that a complaint may be dismissed at any time if an opinion is formed that the complaint is misconceived.

Dated:   20-09-21

Workplace Relations Commission Adjudication Officer:  Brian Dalton

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