FULL RECOMMENDATION
PARTIES : FRS BUSINESS SERVICES T/A TURAS NUA DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No's: ADJ-00021170 CA-00027813-003,CA-00027814-003. BACKGROUND: 2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 28 January 2020. A Labour Court hearing took place on 10 February 2022. The following is the Court's Determination: DETERMINATION: Background Ms. Mullarney, ‘the Complainant’, lodged a complaint against her former employer, Turas Nua, ‘the Respondent’, that she had been discriminated against on grounds of family status contrary to the Employment Equality Acts 1998-2015, ‘the Acts’. An Adjudication Officer, ‘AO’, of the Workplace Relations Commission, ‘WRC’, decided that the complaint was not well founded. The Complainant appealed that Decision to this Court. Summary of Complainant arguments It is not the Complainant’s primary complaint that she, herself, was discriminated against but, rather, that she raised issues of discriminatory practice by the Respondent in the provision of its services. The Complainant is a single parent. The Complainant was discriminated against in the provision of training by the Respondent. She only received two days’ training, whereas others in the same role of ‘Host’ received ten days’ training. The Complainant was required to attend a course in a location far from her home with only a few days’ notice. She was told that her late arrival would be excused but it was used against her subsequently in disciplinary proceedings. The training received by the Complainant was not appropriate to her role. Because of her family status, the Complainant raised an issue at a training course regarding the inability of some people to work full-time. This was used as a basis for subsequent disciplinary action. The Complainant was denied training that was not denied to others of different family status. Summary of Respondent arguments The Respondent denies that the Complainant was treated less favourably due to her family status. The burden of proof to show facts from which any discrimination might be inferred has not been met. No named comparators with different family status have been named in the appeal. The burden on the Complainant is to show that she was treated less favourably because she was a single parent. She has not done so. The Complainant received ten days’ training. The Complainant’s real concern relates to the services provided to customers by the Respondent and she has produced no evidence that she, herself, was discriminated against. All staff received training ‘off-site’. All staff received the same notice. It appears that the Complainant did not open an attachment to an e-mail advising her well in advance of the training. The Respondent was understanding and the Complainant’s late arrival at the course was accommodated. Under the Acts, in order to prove discriminatory treatment, the Complainant must show that there was some link between any alleged bad treatment and the ground cited for alleged discrimination under the Acts. She has not done so. The applicable law Employment Equality Acts 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”). Burden of proof. 85A. — (1) 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. Deliberation Throughout this hearing in respect of the instant case and other appeals before the Court, it was very difficult for the Court to get the Complainant to focus on the specific matters that the Court needs to examine in order to reach a Determination. In that regard, it must be noted that the summary of the Complainant’s arguments set out above is the Court’s attempt to summarise what it believes were the salient arguments made by the Complainant in support of her appeal. As the Complainant’s written submission did not deal with the issues for the Court in any useful way, the summary is based for the most part on notes taken of an oral presentation given by the Complainant. Section 85A of the Acts provides for the allocation of the probative burden as between parties. Subsection (1) of that section provides: - “(1) 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.” The established test for deciding if the probative burden shifts by application of this subsection is that formulated by this Court in Southern Health Board v Mitchell [2001] E.L.R. 201. Here the Court considered the extent of the evidential burden that a Complainant must discharge before the respondent is fixed with the burden of proof. The Court 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”. The Court later elaborated on the application of that test in Determination EDA0821, Cork City Council v McCarthy and commented 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 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”. In the application of these principles to the instant case, the first question for the Court to determine is whether the Complainant was treated differently to colleagues in the provision of training? There is a direct contradiction in the submissions of both parties. The Complainant says that she received only two days’ training , while the Respondent says that she received ten days’ training. The only supporting documentation produced was a list of training days given to the Court by the Respondent. This, of itself, is not conclusive, either way. The second issue concerns the notice given for ‘off-site’ training. The Respondent stated that the same notice was given to all participants but that the Complainant did not read an attachment to an e-mail. This seems to have been accepted by the Complainant, while she noted, with some justification, that she was unlikely to read an email sent to her private email address while she was at work. That may be taken as an understandable criticism of a means of communication but it does not suggest any intention of discrimination and, on the contrary, shows that all staff were treated, in this respect, equally. That being so, the question of whether or not the lateness of the Complainant on the first day of the course due to short notice became an issue is not relevant to any alleged discrimination on grounds of family status. If she was late due to mis-communication any dispute about that is related to the mis-communication rather than to her family status. The Court cannot offer any view as to the validity or otherwise of the Complainant’s concerns regarding the Respondent’s policies in dealing with customers. These matters, and any dispute that arose between the parties due to the Complainant expressing views on these matters, are not related to any alleged discrimination against the Complainant because of her family status. Accordingly, the Court determines that the Complainant has failed to establish facts from which it can be presumed that she was discriminated against on grounds of family status and her appeal must fail. Determination. The Decision of the Adjudication Officer is upheld.
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