Complainant

Respondent

Parties

Paul  McNevin

Barrog Healthcare

Representatives

  Self represented

Sinead Finnerty, Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00040530-003

22/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Protection of Young Persons (Employment) Act, 1996

CA-00040530-004

22/10/2020

The Complainant was employed as a Social Care Worker.  He submitted a number of complaints, that he was discriminated against on the ground of gender and that he was penalised for having raised an issue about the treatment of a young person, the penalisation being that he was dismissed.

CA -00040530-003 Employment Equality Act 1998

The Claimant has taken a claim pursuant to Section 77 of the Employment Equality Act 1998 (referred to as “the 1998 Act”), in which he asserts he was discriminated by his employer by reason of his gender.

As per section 6 of the 1998 Act -

(1) For the purposes of this Act, discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

46. Within this complaint the Respondent provides no details, as such the Respondent submits he has failed to raise a prima facie case of discrimination.

Firstly, the Respondent refers to Section 85A(1) of the 2004 Act as follows –

“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 above was explored in Melbury Developments v Arturs Valpeters EDA0917, in which the Labour Court stated -

“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”.

In light of the foregoing, it remains the Respondent’s position that the Claimant is required to establish the facts as credible evidence on which he seeks to rely. However, the Claimant has failed to do so, nor detail a single event within which he was discriminated by reason of gender.

Moreover, the Respondent would like to draw particular attention to the significant case of Southern Health Board v Mitchell [2001-ELR201] which sets out the test for the burden of proof element on the Claimants in discrimination cases. This case was expanded upon in the HSE case of North Eastern Region v Sheridan [EDA 0820]. In that case, the Labour Court declared the test is as follows:

o The Claimant must prove the primary facts on which he/she relies in alleging the discrimination.

o The Court or Tribunal must evaluate those facts and be satisfied that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

o If the Claimant fails at stage (a) or (b) they cannot succeed. However, if the Claimant succeeds, the presumption of discrimination comes into play and the onus will then shift to the Respondent to prove that on the balance of probabilities that there is no discrimination.

The Respondent respectfully submits that the Claimant has not proved the primary facts in order to satisfy the Tribunal that they are of significance and raise the presumption of discrimination. Thus, by failing the initial two limbs of the test, the onus of proof does not shift to the Respondent and Claimant’s claim should not succeed.

Furthermore, equality law is based on comparison; a comparison on how one person is treated by compared to another. It is therefore necessary to ground a claim of discrimination by pointing to how another person, not having the protected characteristic relied upon, was, is or would be treated in a comparable situation. This is referred to as a comparator.

However, the Claimant has failed to provide a comparator, not even hypothetically, as required by Section 19 (1) of the Acts. Thus, he has failed to demonstrate how he was treated any differently and less favourably to another colleague in a similar situation.

CA- 00040530-004- Protection of Young Persons (Employment) Act 1996

The Claimant’s complaint presented to the Commission falls under the above 1996 act, within which he claims he was penalised for refusing to co-operate with a breach of the 1996 act. Within his details of said complaint the Claimant details how he was arguing with a Manager over the treatment of a young Client.   It appears the Claimant has misinterpreted the meaning of the 1996 Act. As per Section 1 of the 1996 Act -

“young person” means a person who has reached 16 years of age or the school-leaving age (whichever is higher) but is less than 18 years of age.

The 1996 Act provides for the protection of young persons in employment, the Respondent has no young persons as per Section 1 above in their employment and thus, the 1996 does not apply to the Respondent as alleged by the Claimant.

In having no persons in their employment protected by the legislation, the Respondent submits that the Respondent was not in breach of the act nor did the Claimant ever refuse to co-operate with such a breach.

In light of the foregoing the Respondent submits that the claim pursuant to the 1996 act is not well founded.

CA -00040530-003 Employment Equality Act 1998

The applicable law

Section 6(1) of the Employment Equality Acts 1998 and 2011 provides:

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 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’’)

Section 6(2)(a) provides that as between any two persons, the discriminatory grounds are, inter alia: (a) that one is a woman ant the other is a man (in this Act, referred to as ‘‘the gender ground’’),

In order to succeed in a complaint under the Act, in this case the Complainant must establish facts from which it may be inferred that discrimination has taken place that in that the Complainant was treated less favourably than another person in a comparable situation on the ground of gender.  

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(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 her or her, it is for the Respondent to prove the contrary.”

Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred.  If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.

In this case, the Complainant contends that he was discriminated against by the Respondent on the ground of gender.  The allegation arises in the context of a heated argument he had with his (female) supervisor about the allocations of hours for a service user.  When asked in the hearing to expand on his allegation, he simply replied that he was discriminated against because “I’m a guy and she’s a girl with a chip on her shoulder”.   The Complainant has not provided facts or evidence to discharge the burden of proof as required by Section 85A and his complaint is not well founded.

CA- 00040530-004   Protection of Young Persons (Employment) Act 1996

Based on the evidence and submissions, and the reasoning above, I have decided that the complaint is not well founded.

Employment Equality Act, gender discrimination, not well founded.  Protections of Young Persons (Employment) Act 1996, not well founded.