Complainant

Respondent

Anonymised Parties

Executive Officer

A Government Department

Representatives

Joseph Dolan Chief State Solicitor's Office

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-00044822-001

28/06/2021

The complainant contended that he was discriminated against by the respondent on the prohibited grounds of gender and age and that this discrimination took the form of sexual harassment.  The respondent denied the claim.

In his complaint form, the complainant outlined that in January 2021 a male manager of the respondent began sexually harassing him in the office. He stated that initially he was groped from behind with an umbrella and that a few weeks later he (the complainant) caught the male manager masturbating in front of his desk.  He outlined that this was witnessed by others.  He stated that there were other incidents such as the manager asking him how his shower was that morning and inviting the complainant to meet in the toilet.  The complainant outlined that this occurred at least twice.  The complainant submitted that he spoke to a staff counsellor about the issues and was advised how to report the issues.

The complainant submitted that he documented the events and emailed them to the Personnel Officer, after being advised to do so by his own Line Manager.  He submitted that he made that complaint in March 2021 and that, to the best of his knowledge nothing had been actioned about his complaint.

The complainant further submitted that he received a phone call from the staff counsellor in April 2021 and he described the counsellor as being distraught.  He submitted that the counsellor advised him that he had received a call from the personnel officer and his Line Manager “pumping” him for information.  He advised that this was a clear breach of ethics, as this was a confidential service.

The complainant outlined that he then received an email from the personnel officer, asking to meet up for an informal meeting, for a coffee, outside work.  He outlined that this occurred during lockdown.  He submitted that he contacted the union at that time as he was surprised at this request.  He outlined that he was passed from one official to another, that the email he received from the union referred to the personnel officer by his initials and that it seemed to him that the union official knew the Personnel Officer.  He submitted that the union were to contact him back but that by the date of submission of his complaint he had still not heard back from the union.

The complainant submitted that he had firstly tried to deal with this matter with locally by approaching his harasser who laughed in his face.  He submitted that he then tried to deal with the matter through management who put it back onto him, asking what he wanted from this, and requiring him to meet the Chief Medical Officer and to meet the personnel officer informally to begin the process despite him having made a formal complaint.  He submitted that in all those circumstances he was left with no option but to address maters through his complaint to the Workplace Relations Commission.

Evidence given at hearing under oath – the complainant:

At the hearing the complainant advised that he had been sexually assaulted and harassed by a manager, that as a result he suffered from anxiety, depression and stress.  He advised that he had attended his GP who suggested he speak to someone in the workplace about the issues.  He confirmed that he consequently spoke with the Employee Assistance Counsellor who advised him to report matters to his Line Manager.

The complainant confirmed that he spoke to his Line Manager by phone as these issued occurred during the pandemic. He stated that she was condescending and didn’t seem to take his word for what had happened.  He stated that she indicated that she would need to speak to the Employee Assistance Counsellor. The complainant advised that he had raised concern as this was meant to be a confidential service but that his Line Manager had stated that nonetheless she needed to speak with the Counsellor.  He stated that he felt his word wasn’t good enough.

The complainant stated that upon advice from his Line Manager he wrote up an account of the issues of concern and sent it by email to HR.  He advised that he received an “out of office” response, but that no other response was received. The complainant advised that he first emailed his complaint to the Assistant Principal HR and the former HR Manager, and that when he didn’t receive a response, he emailed again the following day but again, he did not receive a response from either individual.  The complainant advised that he sent a further email on the third day, and on this occasion, he received a response from the assistant Principal, HR confirming that she was in receipt of the complaint.  He advised that it took a further 8 days before he received any response from the former HR Manager.

The complainant confirmed that he received a phone call from the staff counsellor who was “out of breath” as she had received a phone call from the former HR Manager wanting to discuss the complaint in the context of a previous incident.  The complainant confirmed that this conversation took place prior to the former HR Manager making contact with the complainant regarding his complaint.  The complainant also confirmed that he later found out that his Line Manager had contacted the staff counsellor, and that while he had given approval for her first contact, this was a second contact which he had not authorised.

The complainant outlined that, at first, he felt that the issue was being taken seriously, but that the next email he received from the former HR Manager requested that they meet outside the workplace “to have a little chat”.  He stated that he felt this was outrageous to propose to meet in a public place to discuss such a sensitive issue. He stated that based on the discussion with the staff counsellor and the content of that email he became concerned that management were investigating him and not the situation he had described in his complaint.  He stated that he was “terrified to engage” and so he had not made contact.

The respondent noted the respondent position that he had refused a meeting with the former HR Manager, and he stated that he had agreed to discuss matters with the former HR Manager but that he had not agreed times and dates for that discussion as, at the time, he was seeking the assistance of the trade union on the matter.  He stated that he had attempted to contact the union, that he had been talking to them but that after he mentioned the former HR Manager, he got no further response from them.  He stated that he didn’t “come running” to the WRC at the outset, that he would have liked the union to have stepped in to assist him.  he stated that he had great concern about how the matter was being handled.

The complainant denied that he had refused to engage in the process, stating that he had done everything possible to get his complaint into the procedure.  The complainant outlined that he was continually engaging, that he was doing everything possible to engage, that he was requesting a formal investigation.  He stated that the matter wasn’t dealt with correctly and that he believed this was because of his gender, and to some extent because of his age. 

The complainant confirmed that he felt discriminated against because of his gender, and that he could not imagine a scenario where a female member of staff would have raised a similar issue only to find themselves four months later with the matter left unaddressed.

He stated that for the former HR Manager to mention a case that happened 3 years earlier and to comment on his mental health was outrageous, instead of dealing with the issue at hand.

The complainant also confirmed that he felt discriminated against by the respondent specifically in the way the former HR Manager spoke to him on the phone, saying that he “treated him like a child.”  He stated that the former HR Manager did not take his word, that it was only after speaking to the staff counsellor that the matter was taken seriously, and that if he was treated as an adult his complaint would have been taken seriously from the outset.

The complainant stated that he was left in a “lonely place”, that he had gone to his Line Manager and the former HR Manager.  He stated that the individual concerned had hounded him, that the comments made were loud and obvious and yet nobody stepped in.  He stated that he didn’t know how it had gotten to this but that when he came looking to management for help, he didn’t get any. He stated that if this had happened to a woman someone would have stepped in.

Cross examination of the complainant:

In response to questions put by the respondent representative the complainant confirmed that he had first submitted his complaint by email of 5 April and that he had received an out of office response.  He confirmed that he had emailed again on 6 April to his Line Manager and that she had responded on 7 April.  The complainant further confirmed that the former HR Manager had responded on 13 April and had expressed concern for the complainant’s well-being.  The complainant confirmed that the former HR Manager had sought a discussion regarding the complaint and that he had emailed the complainant on 21 April advising that he was awaiting a response.  The complainant confirmed that he had confirmed that he was agreeable to discuss matters and that the former HR Manager had responded the following day. 

The respondent representative put it to the complainant that the former HR Manager had tried to follow up with him by calling and texting him but that he could not make contact and he put it to the complainant that there was no record of any texts or emails from him.  The respondent representative put it to the complainant that the former HR Manager wrote again on 22 April and on 7 May and 12 May but received no response.  The complainant stated that the former HR Manager would definitely have received a missed call.

Preliminary Matters:

Issue 1

The respondent requested that this matter be held in private in the context that the complaint related to allegations against a named staff member who was not present and in circumstances where the allegations against that individual had not been investigated by the respondent. The respondent pointed out that it had a duty to protect the confidentiality of all employees.  The respondent requested that the decision be anonymised, and that any individual referred to in the decision also be anonymised.

The complainant confirmed that he had no objection to these proposals.

On the day in question, no member of the public sought to attend the hearing and so the matter of the publication of the decision and the anonymisation of individuals referred to in the decision  remained to be considered by the Adjudication Officer. 

Issue 2

The respondent drew attention to matters contained in the complainant’s documentation which it stated had occurred after the date of submission of the complaint.  The respondent pointed out that such matters could not be considered as part of the instant complaint and that the adjudication Officer should limit consideration to matters prior to 28 June 2021.

The complainant stated that he had merely referred to matters post 28 June for convenience and he noted that the respondent had also submitted documentation beyond the date of submission of complaint.  The respondent pointed out that it had included those documents in response to matters raised by the complainant. 

Issue 3

The respondent submitted that the complaint was not properly particularised and therefore the complainant had not discharged his obligations in respect of sections 6(1), 6(2)(a) and (f) and Section 85A and consequently, had not established a prima facie case on any ground.  The respondent submitted that it was not on notice nor had any knowledge of what incidents or conduct the complainant contends breached the gender and/or age ground.  Moreover, it submitted that it appeared that the complainant took issue with his own trade union representative rather than the respondent.  The respondent submitted that the complaint did not actually impugn the actions of the respondent with reference to the Act or any discriminatory grounds but rather the complainant stated that his complaint was mishandled.

The respondent relied upon Sections 6(1) and (2) of the Act and relevant jurisprudence, stating that the complainant had not referred to any facts that might establish a prima facie case.  The respondent referred to the cases listed below as relevant:

·       Minister for Education & Science v A Worker [EDA 087]

·       Southern Health Board v Mitchell [2001] ELR 201

Issue 4

The respondent submitted that, without prejudice, to the preliminary matters outlined above it also relied upon Section 14A(2) and 15(3) in the context that at the time of the submission of the complaint to the WRC, the complainant refused to engage and/or otherwise ignored the respondents’ attempts to progress and investigation into his complaint under the Dignity at Work Policy, despite initially having agreed to do so. The respondent drew attention to the fact that it had a robust Dignity at Work Policy in place and the complainant, as well as the person who was the subject of his complaint had both been provided with training in respect of that policy.

The respondent further submitted that the complainant had been reminded of the policy at the time of making his complaint and it was explained to him how the policy would proceed.  The respondent submitted that unfortunately, having agreed to discuss his allegations further under the policy, the complainant ceased all communication with the respondent until approximately 1 week after he submitted his complaint to the WRC.  The respondent submitted that therefore, it relied upon the aforementioned sections of the Act, and relevant jurisprudence including S v A Named Organisation [DEC-E2006-025].  The respondent also drew attention to the decision of the Equality Officer in the case of Sroboda v IBM Ireland Product Distribution Ltd. [DEC-E2010-50] where it was stated that “it is important to note and this is well settled area of law, that an employer is bound by the principles of natural justice when carrying out an impartial investigation into an allegation of unlawful conduct in the workplace. An employer must be in possession of certain facts before it can carry out an investigation and take reasonable steps as required by legislation.  It is also important to note that while the employer has a duty towards the person making the complaint, an employer also has a duty of care towards the employee about whom a complaint has been made.  Such an employee has a right to be informed of the nature of the complaint against him or her, and must be afforded the right to reply to such an allegation.  Furthermore, in certain circumstances the employer must be afforded the right to question the person making the allegation.”

The substantive case

The respondent submitted the following sequence of events occurred:

·       that in and around 5 April 2021 the complainant emailed a written complaint to the former HR Manager, then Personnel Officer, and on 6 April 2021 copied same to the Assistant Principal in HR with responsibility for Dignity at work.

·       That on 7 April the Assistant Principal responded to the complainant, acknowledging receipt of his email, advising that the respondent would be in touch shortly and suggesting that the complainant continue to engage with the support service

·       That on 13 April the former HR Manager wrote to the complainant, placing significant weight on his concern for the complainant’s wellbeing and confirming that due to the specific distress alleged by the complainant that he had arranged for him to work remotely with immediate effect.  He also provided the complainant with a copy of the relevant Dignity at Work Policy and outlined the procedure that would be utilised to address his complaint.

·       That on 21 April the complainant responded to the former HR Manager and acknowledged the concern expressed for his wellbeing and confirmed that he had no issue with remote working or to a CMO referral. The complainant also confirmed that he was agreeable to discuss the allegations further.

·       That on 22 April the former HR Manager emailed the complainant and confirmed that his division had been advised that he would be working from home and confirmed that arrangements for the CMO assessment were in train.  The former HR Manager suggested that he and the complainant meet for an informal discussion and noted that this could be done via Webex or in person (masked) if the complainant preferred.

·       That the complainant did not respond to this email

·       That on 7 May the former HR Manager followed up seeking an update but received no response

·       That on 12 May the former HR Manager again emailed the complainant seeking an update but again received no response.

The Law

In its’ submission, the respondent noted its’ reluctance to engage in detailed legal argument where to do so was effectively guessing what the complainant intended to present at hearing and/or in the light of preliminary arguments.  In such circumstances, the respondent submitted that it would present more a general response while reserving the right to provide a more detailed response should that prove necessary.

The respondent drew attention to Section 6(1)(a) of that Act which states that “discrimination shall be taken to have occurred where – (a) a person is treated less favourably that another person is, has been or would be treated in a comparable situation.” The respondent submitted that the import of this section was to render any claim for discrimination, other than pregnancy discrimination, unsustainable unless an appropriate comparator was identified.  Moreover, it submitted that it was not an option for a complainant to merely select a comparator at random, and that such comparator must be selected in context with other employees of the employer and reasons must be given.

In that context the respondent submitted that for the complainant to successfully rely on any hypothetical comparator (which he had not done prior to hearing) he must provide an evidential basis that such a comparator would have been treated more favourably in the circumstances of his particular case and/or that any existing potential comparators were unsuitable.  In this regard the respondent opened the case of Barnmac Contracting Ltd. V Zilys and Volkovas EDA 1022.  In the light of that case the respondent submitted that the complainant could not state with any authority based in fact that the respondent would have treated any other comparable member of staff any differently to him under the same circumstances where the respondent was urging him to pursue his complaint and where he was immediately facilitated with remote work in order that he did not have to attend the office with the person against whom he had made the complaint.

The respondent also opened the case of Clare Civil Engineering v Ostojic [EDA 101] where it was confirmed that where a complainant failed to establish less favourable treatment due to the fact that all employees are “treated in the same manner” whether lawful or not, i.e. even where employees are all treated equally poorly, (which the respondent stated was not the case here).  The respondent noted that such circumstances would cause a claim for discrimination to fail and noted that in circumstances where all staff were required to progress complaints of this nature pursuant to the Dignity at Work Policy it was untenable to suggest that the complainant was treated less favourably in any context.

In conclusion, the respondent submitted that the complainant’s claims should fail in circumstances where:

·       His complaints were not statable

·       He had not made out a prima facie case as required

·       He “conflated” what he perceived to be a mishandling of his internal complaint with discrimination, both of which were denied

·       He failed to engage with the respondent in a timely manner or at all

·       The respondent immediately actioned appropriate working conditions upon receipt of the internal complaint

·       The respondent diligently and sensitively attempted to progress the complaint

·       The complainant failed to appreciate the respondent’s bona fide attempts to assist him

·       Without prejudice, the respondent was entitled to rely on sections 14A(2) and 15(3)

The respondent submitted that for all of the above-mentioned reasons the complainant was not entitled to succeed, and his complaint should be dismissed.

Evidence given at hearing under oath – Line Manager

The Line Manager confirmed her general responsibilities and confirmed that she was temporarily the complainant’s manager in the context that the previous manager had left, and the replacement manager had not yet taken up post.

In response to queries from the respondent representative she confirmed that she did recall the phone call with the complainant but that she did not recall there being any difficulty during that call.  She stated that he described to her 4 incidents which he alleged occurred that year and he had advised her that he had contacted CSAS.

The respondent representative asked if she “pumped CSAS for information, to which she responded that on 1 April she had agreement from the complainant, that he was agreeable to her speaking to CSAS.  She confirmed that CSAS had said that the required his permission before they could speak to her.

The Line Manager also confirmed that she had phoned the service on a second occasion i.e.; 2 April.  She stated that there was an event in the workplace and that some of the team had sent texts, emails and WhatsApp messages but that there was nothing from the complainant.  She stated that he had been told to keep in contact with CSAS and that as she was concerned about him, she had followed up with a phone call.  She stated that she wasn’t aware that she needed his permission for a follow up call, and she was advised that he had been in contact.

Cross-examination of Line Manger

The complainant confirmed that based on the WhatsApp message he could accept the basis of her call CSAS and that he was satisfied with her explanation as to why she made a second call.  He indicated that he stood by his account of the phone call between them and that he had no further questions for her.

Evidence given at hearing under oath – Former HR Manager

The former HR Manager confirmed his current role and that he was head of HR from May 2018 to December 2021.  He confirmed that the complainant became known to him previously, as he had done work in his office and, more recently, in relation to his complaint.

In response to queries from the respondent representative the former HR Manager confirmed that in relation to the email of 13 April he was very concerned for the wellbeing of the complainant, he had described himself as not sleeping well and dreading coming to work.  He stated that he took these matters very seriously and so he had arranged for the complainant to work from home in the interim while he proposed to meet with the complainant to discuss his complaint.  He confirmed that he emailed again 8 days later as he was concerned when he hadn’t received a response and he stated that he was glad to hear from him, when ultimately the complainant did get in touch.

In relation to queries from the respondent representative the former HR Manager stated that he believed that the complainant was happy with the arrangement to work from home, that he had never raised any issue of concern in that regard.  He stated that, in fact, the complainant had described coming to work as unbearable and he (former HR Manager) felt that the option of remote working was alleviating that.

The respondent representative asked the former HR Manager if it was his intention to address the matter informally and he responded that what he sought was an informal chat, that he was happy to have that via Webex or in person. He stated that he left the choice up to the complainant, that he would have accommodated whatever best suited the complainant.  He said it was certainly not the case that he was trivialising the complaint, that he wanted to engage with the complainant, and he confirmed that while he was concerned and had empathy for the complainant, he was also somewhat frustrated as it appeared that the complainant did not want to engage on the matter.  He stated that there was an onus on the complainant to engage, having made a complaint.

In response to questions put by the respondent representative the former HR Manager confirmed that he had sent the complainant a copy of the Dignity at Work Policy on 13 April and he confirmed that he had absolutely no contact with the complainant’s trade union representative.

Cross-examination of Former HR Manager

The complainant asked the former HR Manager who had decided on his remote working.  The former HR Manager responded that the complainant had indicated that he dreaded coming in to work and, in that context, he had made arrangements to formally facilitate remote working. The former HR Manager advised that the complainant had commenced working from home himself prior to 13 April, that in essence he had taken himself out of work. The complainant responded that while he did not have an issue per se with remote working he felt the other individual should have been taken off the floor.

The complainant put it to the former HR Manager that if he was concerned about his wellbeing why did he suggest an in-person meeting in the context of Covid 19.  The former HR Manager responded that he had offered an alternative suggestion of a phone call or Webex meeting, that he had also suggested wearing masks in the event of an in-person meeting.  The former HR Manager stated that he had significant concern in relation to the complainant’s health at the time and it was a matter of regret to him that his actions had caused such concern.

Preliminary Matters:

Issue 1

The respondent requested that this matter be held in private in the context that the complaint related to allegations against a named staff member who was not present and in circumstances where the allegations against that individual had not been investigated by the respondent. The respondent pointed out that it had a duty to protect the confidentiality of all employees.  The respondent requested that the decision be anonymised, and that any individual referred to in the decision also be anonymised.

The complainant confirmed that he had no objection to these proposals.

On the day in question, no member of the public sought to attend the hearing and so the matter of the publication of the decision and the anonymisation of individuals referred to in the decision remained to be considered. 

Taking into account that the allegations made by the complainant against a named individual employed by the respondent had not been investigated I formed the view that it was imperative that any reference to that individual should be anonymised.  I also formed the view that the publication of other names and indeed the name of the respondent and complainant in this instance might result in that individual being identified.  In that context and in the context that the complainant had no objection I have concluded that this complaint should remain a private matter and, in that context, I have exercised my discretion to anonymise this decision and the various attendees.

Issue 2

The respondent drew attention to matters contained in the complainant’s documentation which it stated had occurred after the date of submission of the complaint.  The respondent pointed out that such matters could not be considered as part of the instant complaint and that the adjudication Officer should limit consideration to matters prior to 28 June 2021.

The complainant stated that he had merely referred to matters post 28 June for convenience and he noted that the respondent had also submitted documentation beyond the date of submission of complaint.  The respondent pointed out that it had included those documents in response to matters raised by the complainant. 

I noted that in addition to the above documentation, in the course of giving evidence and during cross examination both parties also referred to events that occurred post the date of submission of the complaint.

In arriving at my decision, I considered that I can only properly hear matters that predated the submission of the complaint and that anything that occurred beyond that date did not come within my remit.  In that context, I have not considered those documents or such testimony nor have I recorded them or referred to them throughout this decision.

Issue 3

The respondent submitted that the complaint was not properly particularised and therefore the complainant had not discharged his obligations in respect of sections 6(1), 6(2)(a) and (f) and Section 85A and consequently, had not established a prima facie case on any ground.  The respondent submitted that it was not on notice nor had any knowledge of what incidents or conduct the complainant contends breached the gender and/or age ground.  Moreover, it submitted that it appeared that the complainant took issue with his own trade union representative rather than the respondent.  The respondent submitted that the complaint did not actually impugn the actions of the respondent with reference to the Act or any discriminatory grounds but rather the complainant stated that his complaint was mishandled.

The respondent relied upon Sections 6(1) and (2) of the Act and relevant jurisprudence, stating that the complainant had not referred to any facts that might establish a prima facie case.  The respondent referred to the cases listed below as relevant:

·       Minister for Education & Science v A Worker [EDA 087]

·       Southern Health Board v Mitchell [2001] ELR 201

In considering this matter I paid close attention to the complainant’s written complaint form and to the evidence given by him at hearing.

Section 85A (1) of the act provides: that “(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.”

In any case involving an allegation of discrimination an Adjudication officer must first consider the allocation of the burden of proof as between the complainant and the respondent.

Section 85A provides that where a complainant establishes facts from which discrimination may be inferred it then falls to the respondent to prove that the principle of equal treatment was not infringed.  Once these facts are proved, and if an Adjudication Officer considers them to be sufficiently significant to raise an inference of discrimination, then the onus of proving the contrary shifts to the respondent.  If a complainant does not prove the primary facts upon which they relay or if those facts are insufficient to raise an inference of discrimination the claim cannot succeed.

The complainant in this case alleged that he was discriminated against and treated less favourably on the grounds of gender and on the grounds of age.  The complainant did not provide any comparator for the age ground, nor did he indicate a comparator for the gender ground when submitting his complaint form.  However, at hearing the complainant indicated that his comparator for the purpose of the gender ground was any female staff member experience the same issues.  He suggested that any female member of staff who was being sexually harassed in the workplace would have received early, if not immediate intervention and that if they had made a formal complaint of such behaviour would have had their complaint addressed through the formal procedures in a timely manner.

It is for the complainant in the first instance to establish surrounding or primary facts which could lead to an inference that discrimination has occurred before the burden of proof shifts to the respondent.

In Melbury Developments Ltd. V Valpeters [2010] ELR 64, 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.”  The established test for ascertaining if the burden of proof shifts to the respondent was set out by the Labour Court in its determination in Mitchell v Southern health Board [2001] ELR 201.  That test provides:

1)     It is for the complainant to prove the primary facts upon which he or she relies in seeking to raise a presumption of discrimination.  If the complainant fails to do so, he or she cannot succeed.

2)     If the primary facts relied upon are proved, it is for the Court to evaluate those facts and consider if they are of sufficient significance to raise a presumption of discrimination

3)     If the facts proven are considered of sufficient significance to raise a presumption of discrimination the onus of proving that there was no infringement of the principle of equal treatment passes to the respondent.

In this case the primary facts relied upon by the complainant are:

·       That the comparator for discrimination on the grounds of gender was any female in a similar situation

·       That he made a complaint in writing on 5 April 2021 to 2 senior HR Managers

·       That the substance of that complaint related to allegations of a number of instances of sexual harassment

·       That he received an acknowledgement of that complaint from one of those managers on 7 April 2021

·       That he only received a response from the Head of HR on 13 April 2021

·       That his Line Manager sought to contact the staff counselling service in relation to his/his complaint

·       That the Head of HR sought to meet with him for an informal discussion in relation to his complaint

·       That in the context of no action taken by the respondent to investigate his complaint he was left with no option but to submit his complaint to the WRC

The issue I must first consider is whether or not primary facts can be established from which discrimination can be inferred.

It is valid to use a hypothetical comparator, however, there must be some fact(s) upon which it can be accepted that a female staff member in the same or similar circumstances would have been treated more favourably.  No evidence was provided by the complainant to demonstrate that the employer had ever dealt with a complaint by a female staff member in a different fashion; nor was any evidence provided to demonstrate that the response of colleagues to the events described by him was different.  The complainant merely relied upon his assumption that a female staff would have been treated differently.

While the complainant raised concerns about how his case was handled by the respondent and about the fact that contact was made with the staff counselling service, he did not relate this specifically to his allegation of discrimination and I could, therefore draw no connection between these events and a claim of discrimination.  While I share the complainants concern about the way his complaint was handled, particularly given the serious allegations contained therein, in my view it does not constitute a case of discrimination on the grounds stated.

As set out by the Labour Court in Southern Health Board v Mitchell [2000] ELR 201 outlined above, it is for the complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to them.  I am of the view that in the instant case, no such facts have been established and I find that the complainant has failed to establish a prima facie case of discrimination on the prohibited ground of age or on the prohibited ground of gender.

For the reasons set out above I have found that the complaint has failed to establish a prima facie case of discrimination of the prohibited ground of gender or the prohibited ground of age.  In that context it is my decision that this complaint is not well founded.

Discrimination on the prohibited grounds of age and gender