FULL RECOMMENDATION
PARTIES : BIDVEST NOONAN (ROI) LIMITED DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00014780 CA-00018951-003 Ms. Laisa, ‘the Complainant’ was an employee of ISS Facilities Ltd. when a transfer of undertakings arose in 2010 and, as a result, she became an employee of Bidvest Noonan, Ltd., ‘the Respondent’. The Complainant is one of a number of people in a similar position whose pay at the time of transfer exceeded the rates provided for in the industry Employment Regulation Order, ‘ERO’ and who contend that there was a contractual obligation on the new employer, the Respondent, to increase their rate of pay in line with increases in the ERO rates, as, it is contended, this contractual commitment was created by the previous employer who adopted a practice of increasing their pay rates in line with increase in the ERO rates. The Complainant made a series of complaints on the same set of facts under a number of Acts to the Workplace Relations Commission, ‘WRC’. This is an appeal by the Complainant of the Decision of an Adjudication Officer, ‘AO’, that she had not suffered indirect discrimination on grounds of age, contrary to her rights under the Employment Equality Act, 1998-2015. Summary of Complainant Arguments Older employees transferred from ISS to the Respondent were not given the ERO increases, which were given only to newly hired employees. This was found to be an unlawful deduction and is ‘prima facie’ evidence of discrimination. This is indirect discrimination as the effect has a discriminatory impact. The onus is on the Respondent to prove otherwise. Summary of Respondent Arguments For a ‘prima facie’ case to be established requires facts from which an occurrence of discrimination may be inferred of sufficient significance to shift the burden of proof, as per s.85A of the Act. The Court is referred toSouthern Health Board v. Mitchell DEE011 (2001) ELR201and toMargetts v Graham Anthony and Company Limited, EDA 038. S.6 of the Act sets out an explanation of what constitutes discrimination. In this case, the Complainant has stated that her basis for a claim of age discrimination is based on years of service. Nothing in s.6 of the Act supports this as a basis for such a complaint. The Applicable Law Employment Equality Act 1998-2015 Discrimination for the purposes of this Act 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 insubsection (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 ofparagraph (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 tosubsection (3)(in this Act referred to as “the age ground”), (g) that one is a person with a disability and the other either is not or is a person with a different disability (in this Act referred to as “the disability ground”), (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”), (i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”).
It is clear from s.6(2)(f) above that the very first requirement for a complaint of discrimination to be established is that a complainant must show that a comparator of a different age was treated more favourably. A general, sweeping allegation, without any specific evidence of age, that the Complainant was part of a group that was said to be older than another group, without any evidence to support this assertion, which, it is claimed, was treated more favourably does not meet this very basic requirement. Therefore, it is, simply, necessary for the Court to note that the Complainant did not produce for the Court a comparator, or comparators, of different age to her to whom she could make a comparison and, thereby, seek to show ‘prima facie’ evidence of discrimination. The Court, noting that the Complainant did not have professional representation, asked if the Complainant would be able to provide details of any such comparators if afforded the opportunity to do so, to which the Court was told that this was not possible. As perMelbury Developments v. Valpeters (2010) ELR 64,‘mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’. Therefore, it is not necessary for the Court to consider the matter further as it is indisputable that the Complainant has not met the requirements of s.85A of the Act and that her appeal cannot succeed. Determination The Decision of the Adjudication Officer is upheld.
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