Complainant

Respondent

Anonymised Parties

Scaffolder

Scaffolding company

Representatives

  Self- represented

 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-00039689-001

08/09/2020

The complainant commenced employment as a scaffolder with the respondent, his father, in 2007.

The complainant contends that he was discriminated in terms of his conditions of employment on the grounds of family status and disability and that he was victimized and harassed on the former ground contrary to the provisions of the Employment Equality Acts 1998-2015 (The Acts).

The last act of discrimination occurred on 30 August 2020 when the respondent made a deduction from his salary and from no other employee. The complainant’s employment terminated on the 2 October 2020.

The complainant’s weekly salary was €713.50 a week.

He submitted his complaint to the WRC on 8 September 2020.

Discrimination on grounds of family status.

The respondent’ representative asked that the complaint should be dismissed on a preliminary point.

The respondent’s representative points to section   6 (1) of the Acts which states

“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 in a comparable situation on any of the grounds specified in subsection (2) of this Act”

The respondent states Section 6(2)(c) of the Acts confirms that where two people of different family status are treated differently, this will amount to unlawful treatment.

The complainant does not meet this requirement under the Act. The complainant has failed to identify a comparator. The complainant has misunderstood the meaning of family status as set out in 6(2)(c) of the Acts. The fact that the respondent is this father does not, of itself, bring him within the protected ground. That being the case, the complainant has not established that his circumstances fall within the protected grounds under the Acts. Nor has he established that his circumstances fall within the definition of victimisation under the Act. As he has not established that he falls within one of the protected grounds under the Act, the claim should fall in its entirety.

The complainant does not have a contract of employment.

The complainant is unable to establish a prima facie case of discrimination

The complaint of victimisation on the family status grounds.

As the complainant does not come within the protected ground, his complaint cannot succeed.

Discrimination on the grounds of disability

The complainant has failed to identify a comparator. The complainant has failed to identify how he comes within this protected ground. The complainant is unable to establish a prima facie case of discrimination on the grounds of disability.

The complaint of harassment on the grounds of disability

As the complainant does not come within this protected ground, his complaint cannot succeed.

The respondent asks that the complaint should be dismissed in its entirety.

Entitlement to rely on protection against discrimination on the grounds of family status.

The complainant gave evidence under affirmation.

The complainant set out why he believes that he was discriminated on the grounds of family status. The complaint is a parent of two children. He is the son of the respondent who is a parent of two children as is the complainant’s sister. He states that his father consistently abuses him in the workplace because he is his son.

The instances of discrimination on family status grounds occurred in February 2017 when his father ordered him off the site. He does not behave towards other employees like this, and the complainant believes that the respondent behaves in this manner because he believes that he can treat his son differently to other employees. Further instances of less favourable treatment on family status grounds occurred in 21 May 2020, on the 14 July 2020 and on 30 August 2020

Upon questioning, the complainant was not able to identify the family status of other employees.

Discrimination on the grounds of disability.

The complainant believes that he was discriminated on the grounds of disability. He had to seek medical attention in October 2019 and in November 2020 for hypertension and stress brought on by his father’s behaviour towards him. This is the basis of his complaint.

Discrimination on grounds of family status.

The respondent’s representative spoke on his behalf.

Without prejudice to the respondent’s preliminary point and in the event that the Adjudication Officer determines she has jurisdiction to consider the within claim, the respondent denies that they discriminated against the complainant under any of the grounds set out in the Acts.

The respondent requests that the following submissions be taken into consideration:

The complainant has brought a claim under section 77 of the Employment Equality Act 1998 (as amended) (“the Act”) and claims he was treated differently on the basis of family status. Discrimination is dealt with in Section 6(1) of the Acts.

It is submitted that the complainant claimant has failed to establish a prima facie case with regard to his claims of alleged discrimination. The respondent relies on Mitchell -v- Southern Health Board [2001] 12 E.L.R. 201 where the Labour Court clarified the burden of proof which a complainant must meet in relation to section 85A of the Acts. The respondent also relies on Melbury Developments v Arthur Velpetters (2010) 21 ELR, 64, where It was stated that

“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 respondent disputes any claim that the complainant was treated “less favourably” than any of the respondent’s other employees. It is submitted that if anything, the complainant was treated more favourably because he is the respondent’s son, and the respondent was preparing the complainant for the rigours of one day taking over the respondent’s business.

In disputing that any less favourable treatment was visited on the complainant, the respondent also relies on the decision of Adejumo v Noonan Services Group Ltd. (E2015-023), where the Equality Officer in assessing whether the claimant had been the subject of discrimination based on his family status and religion held,

 “[T]he complainant merely asserts he was subjected to less favourable treatment…. It is settled law that mere assertions are insufficient to discharge the initial probative burden required.”

 It is submitted that the claimant has speculated and made mere assertions only as to the reasons he believes that he was discriminated on account of his family status, victimisation, harassment and conditions of employment and has not established facts based on any actual evidence

The respondent submits that this is a matter between father and son, the circumstances of the claim have come about as a result of a rift in the family’s circumstances and the Workplace Relations Commission is not the appropriate forum for these matters to be aired

 In light of the above, the respondent invites the Adjudication Officer to find that the claims are not well founded and should fail.

Witness 2: the respondent director gave evidence under affirmation.

The witness stated that he could not identify the exact periods during which he employed the complainant in 2020. As the complainant was at risk of contracting Covid-19, the respondent gave him the necessary documentation enabling him to remain off work and secure Pandemic Unemployment Payments from March to May 2020.

The witness introduced split shifts as there was insufficient work to maintain full time shifts. Furthermore, he was trying to maintain social distancing. Every employee and not just the complainant, as alleged, was asked to work split shifts. The witness denied that he deducted €100 in August 2020. Rather, the complainant had requested an additional €100 a week and he could not afford at that time to pay him this additional €100.

Discrimination on the grounds of disability

The witness stated that he never received any letter from the complainant’s doctor. He was unaware of his illness.

Discrimination on the ground of family status.

Witness 1: the complainant gave evidence under affirmation.

Instances of alleged discrimination.

The respondent asked him to do split shifts in May 2020. Other employees were not asked to do split shifts.

On 21 May 2020, the complainant had an argument with the respondent about materials needed for a job. The respondent let him go. He does not treat other non- family members in this manner. The complainant is unaware of the family status of the colleague who was not let go.

On 14 July, the respondent sent the complainant home because there were insufficient materials for the scaffolding job. But while he sent a colleague home also, he collected and returned that same colleague to the site. The complainant was not permitted to return to the site. That employee had the same family status as the complainant.

In August the complainant discovered that another employee with less service than himself was given a company van and was on a higher wage than the complainant. He is not sure of the family status of that employee.

Upon questioning the complainant was not in a position to identify the family status of employees not assigned to split shifts.

On 30 August 2020, the respondent advised him that there was no work available for him.

Victimisation.

The respondent deducted €100 from his wage packet on 30 August 2020. No other employee suffered a deduction.

 On 30 August the complainant told him that he would have to make a complaint to which the respondent replied, “go and get your solicitor” The complainant advised the respondent on the same day that he would have to proceed to the WRC with a complaint.

Discrimination on the grounds of disability.

 The complainant states he had to go to his GP in September 2019 for stress and hypertension due to the conduct of his father, the respondent. He believes that he sent in a medical cert around that time to the respondent.

Harassment.

The complainant states that the respondent knew that he had mental health issues yet would taunt him. On one occasion in August 2020, the respondent told him, in front of other staff, “go back to your counsellor”.

Cross examination of the complainant.

The complainant was unable to confirm the periods of employment with the respondent.

The complainant was unable to confirm if he had worked for other companies in 2019. He believes that he returned to the respondent’s employment just before Covid-19 hit the country and workplaces.

The complainant confirmed that he asked the respondent to enable him to receive Pandemic Unemployment Payments in March 2020 and the respondent provided him with a letter stating he was no longer employed with the respondent thus enabling him able to access these payments.

Preliminary point.

Is the complainant covered by the protected ground?

Discrimination on the grounds of family status.

Relevant law

 Section 6 (2)(1) of the Acts provides as follows:

 “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.

Section 6(2)(c) states discrimination can occur where

“One has family status, and the other does not (in this Act referred to as “the family status ground”),

Section 2(1) of the Acts defines family status as

“a parent or as a person in loco parentis in relation to a person who has not attained the age of 18 years, or

(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis,”

The complainant has made a complainant that he was treated less favourably in terms of his conditions of employment because of his family status.

Discrimination on the family status grounds arises where you treat a worker less favourably because of their family status when compared with another worker (a comparator) who has no family status and who performs the same or similar functions to the complainant. The complainant was unable to identify any other employee with a different family status who was treated more favourably than the complainant.

The complainant attributes what he believes to be less favourable or unfair treatment to the fact that he is related to the respondent who has the same family status as the complainant as do other members of his family.

 What has eluded the complainant is that the essential element of a complaint under the family status grounds is less favourable treatment driven by a difference in status, not a family relationship gone wrong. The fact that the respondent is this father does not, of itself, provide protection from discrimination as per section 8 (1)(b) of the Acts

Therefore, I find that the complainant cannot rely on the family status ground to claim a right to protection against discrimination as set out in section 8(1)(b) of the Acts. The complainant is unable, therefore, to raise a prima facie case of discrimination as required by section 85A of the Acts.

I find that his complaint is misconceived and cannot succeed.

Victimisation on the grounds of family status.

Relevant Law.

Section 74(2) of the Acts defines victimisation as

“For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs”.

Proof of the discrimination claimed of is not required to make a complaint of victimisation, merely that the complainant has put the respondent on notice that a complaint of discrimination on grounds of family status has been or will be made and it is this declared intention or protected act which prompted the adverse treatment.

In Department of Defence -v- Barrett EDA1017, the Labour Court set out the three components which must be present for a successful claim of victimisation under Section 74(2) of the Acts as follows:

“(1) The Complainant had taken an action of a type referred to at Section 74(2) of the Acts.

(2) The Complainant was subjected to adverse treatment by the Respondent, and

(3) The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

 Under the first limb of the latter test, the protected act identified by the complainant in evidence was his statement to the respondent on 30 August that on foot of the respondent’s notification to him of reduced work opportunities, and of a decision to deduct €100 from his wages, he, in response, would have to proceed with a complaint to the WRC about this loss of work. But the complainant’s statement that he would make a complaint (the protected act) came after the respondent’s adverse treatment and made no reference to discrimination.

The protected act relied upon by the complainant to ground a complaint of victimisation coming, as it does, after the adverse treatment, does not comply with the statutory provisions set out in section 74(2) of the Acts.

I do not find this complaint to be well founded.

 Harassment on the grounds of family status.

Section 14A (7)(a) of the Acts describes harassment as

“Any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) n/a

being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

As I find that the complainant is not covered by the family status ground, the complaint that the unwanted conduct is related to his family status cannot succeed.

Discrimination on the grounds of Disability.

The first obligation which the complainant must meet is compliance with section 85A of the Employment Equality Acts 1998-2015 which lays the onus of proof with the complainant to establish a prima face case of discriminatory treatment contrary to the Acts. Section 85A (1) of the Acts states that

“In any proceedings where facts are established by or on behalf of a complainant from which it may be presumed that discrimination has occurred in relation to him/her, it is for the respondent to prove the contrary”

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201, the Labour Court concluded that”

 “a complainant 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 was no infringement of the principle of equal treatment”

In order to achieve compliance with section 85(A)- the first step- he must satisfy three elements of a test laid out in Hallinan v. Moy Valley Resources DEC-S2008-25, a complaint taken under the Equal Status Act, 2000, where the equality officer held that in order to establish a prima facie case of discrimination, the following must be established:

(a) The complainant must establish that he or she is covered by the protected ground,

(b) Establish the specific treatment has allegedly taken place

(c) The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

Section 2 of the Acts defines disability as

“(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,

(c) the malfunction, malformation or disfigurement of a part of a person’s body,

(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,

and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future, or which is imputed to a person”.

The complainant referred in evidence to having visited a doctor in 2019 due to hypertension and stress brought on by the respondent’s behaviour towards him. But the medical evidence presented by the complainant is dated 20 November 2020, almost three months after the treatment meted out to him in July – August 2020, the treatment which he states was less favourable than that afforded to other employees. In addition, the complainant’s main focus throughout the hearing was that the respondent treated him unfairly because he was his son. His complaint on the grounds of disability centred on the fact that he had a disability. He gave no evidence of less favourable treatment relative to an employee without a disability or with a different disability. He misunderstood the essence of a complaint of discrimination as the existence of a disability per se as opposed to the disability being the cause of less favourable treatment relative to an employee without a disability or with a different disability.

The absence of medical confirmation of actual diseases, conditions or malfunctions during the period July -August 2020 means that I am unable to find that the evidence advanced by the complainant matches the definition found in section 2 of the Act at the relevant time.

Aside from a complaint devoid of a comparator to whom the complaint could point, a misunderstanding as to what less favourable treatment on the grounds of disability means, the evidence fails to demonstrate that the complainant is covered by this protected ground at the period in which he states that he was treated less favourably

I find that the complainant cannot avail of the definition of disability and as a consequence he has not reached the prime facie test to base a complaint of discrimination on grounds of disability contrary to section 6(2)(g) and section 8 of the Acts.

I find his complaint is misconceived

Anonymisation of parties’ names.

Section 11 of The Workplace Relations (Miscellaneous Provisions) Act 2021 amended section 79(2) of the Employment Equality Act 1998-2015 by the substitution of the following subsection for subsection (6)

“An Investigation under this section shall be held in Public unless the Director General of the Workplace Relations Commission, of his or her own motion or upon application by or on behalf of any party, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public”

I decide that the disclosure of the parties’ names is of no instructional value and only publicises what is a private family conflict which is best resolved within the confines of the family.

Accordingly, I decide that this decision should be anonymised.

The complainant has failed to raise a prima facie case of discrimination on grounds of family status and disability in terms of section 6(2) (c)and (g), or of harassment in terms of section 14A (7) of the Employment Equality Acts, 1998-2015, and contrary to section 8 of those Acts.

I decide that the respondent did not victimise the complainant contrary to section 74(2) of the Acts. The complaint is misconceived.

Absence of prima facie case of discrimination.