Complainant

Respondent

Parties

Oliver  Natale

Department Of Social Protection

Complainant

Respondent

Anonymised Parties

Representatives

  Self

Roderick Maguire, BL, instructed by Chief State Solicitors Office

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00053715-001

14/11/2022

The complainant submitted an application to the Department of Social Protection for assistance under the Back to Work Enterprise Allowance (BTWEA). This application was not approved, and the complainant submits that it was not approved due to his race.  The respondent refutes this allegation.

In this decision I have exercised my discretion and anonymized the names of the attendees of the Department of Social Protection in view of the concerns highlighted at the hearing.

I have also decided to anonymize the names of the complainant’s support friends.

The complainant was not represented and gave his evidence on oath. The complainant contacted the Department of Social Protection as he wanted to participate in the Back to Work Enterprise Allowance Scheme.  He had an initial telephone interview with an officer from the Inner-City Enterprise Office to discuss his proposed project.  The complainant registered for training and on completion of this an application was made on his behalf to the Intreo Office.   The complainant submits that he received a telephone call from Ms A who is a case officer in the Department of Social Protection. She noted that the complainant had registered with Revenue as self-employed from September 2021.  She advised the complainant that in view of this he should inform Social Welfare.  The complainant asked Ms A if she would meet him to discuss his proposed project.  She informed him that she had rejected his application and the complainant replied that this was racism and that when he sends a CV people read his name, they then reject his application.  Ms A denied that she was racist.

The complainant made a complaint to the Department on 21/06/2021 against Ms A on the basis that she rejected his application without giving him an interview and refusing to meet him in person. 

The complainant was advised by Mr B that the complaint would be investigated by an Employment Service Manager from another area.  The outcome of this investigation was communicated to him by letter on 01/09/2021 and the outcome was that the Employment Service Manager agreed with the initial decision to refuse the application.

The complainant had various contacts with the Department in relation to the refusal to accept his application.  He submits that his application was not dealt with in accordance with the process which is outlined.  Specifically, he had no one-to-one meeting and there was no discussion with him in relation to the eligibility criteria.  If an application is not successful it should not be referred to the local office, but a letter of refusal should be issued to the applicant and a copy sent to the local office.

The complainant believes that the decision to refuse his application was based on false information.  He did not state that he intended to provide legal services but rather that he intended to advise clients in relation to legal matters they were dealing with.  The case officers are obliged to adhere to the procedures in order to ensure a fair and equal opportunity for all in the assessment of their applications.

The complainant is seeking a reversal of the Department’s decision and an apology from the Department in relation to the way he was treated and compensation “for the stress, denying the service, loss of customer and income”.

The complainant was cross examined by Mr Maguire, BL on behalf of the respondent. It was put to the complainant that in his evidence he outlined what he is seeking and in doing so there is no reference to any issue in relation to his race.  In that context his complaint is about the process.  The complainant outlined that the procedure was not properly followed because of his race.  The complainant confirmed that he spoke to Ms A on 15/10/2021 and she outlined what she saw as problems with the proposal, and she outlined the Assessment of Suitability process.   The complainant stated that this conversation was more about him having registered with Revenue as self-employed and the need for the Department to be informed.

It was put to the complainant that Ms A did not devise the term legal advice.  His application stated that he was proposing to offer one-to-one advice on a number of matters including advice on legal documents.  The complainant did not agree that this constituted legal advice.  It was put to the complainant that he signed the Assessment of Suitability form on 20/10/2021.  He confirmed that he did but that he did not read the entire document once he saw a negative comment on the first page.  It was put to the complainant the Ms A will give evidence that she raised several issues in relation to the complainant’s proposal with him.  The complainant stated that the conversation was confined to the tax issue and nothing else.

It was also put to the complainant that Ms A will give evidence that she is not racist, and the complainant stated that he believed that she was racist towards him.  This occurred when she spoke to him on the phone and did not mention what documents were needed and her refusal to meet him was also a factor. 

It was put to the complainant that he had ten meetings with Mr C in relation to this matter and he agreed that he had. 

The complainant was asked to explain how Ms A discriminated against him on the basis of his skin colour.  He outlined that her refusal to meet him was racist.  The complainant was asked how the colour of his skin could be a factor.  He stated that the way she was talking to him was the reason he stated this.  The complainant stated that no one discussed the application with him and the telephone call with Ms A lasted six or seven minutes.

It was put to the complainant that the reason his application was not approved was because his business plan was flawed, and race was not a factor.  The complainant stated that he believes that race was a factor.

The respondent, by way of written submission, requested the Adjudication Officer to exercise their power under Section 42(1) of the Workplace Relations Act 2015 to dismiss this claim as being frivolous or vexatious.  There was no evidence proffered by the complainant that his race had anything to do with the decision to refuse his application for the BTWEA.  It was submitted that a basic review of the complainant’s application would show that the complainant was going to provide services already readily and freely available from the State.

This application was not granted, and a hearing proceeded to hear the substantive case.

The respondent submitted by way of explanation that the BTWEA is an incentive for people who are in receipt of a qualifying Social Welfare payment to develop a business while allowing them to retain a reducing proportion of their qualifying Social Welfare Payment over two years.

The complainant, in November 2020, was referred to the Enterprise Officer in the Inner-City Renewal Group (ICRG).  The complainant was working with the Enterprise Officer to prepare a business plan.  On 15/10/2021 an assessment of suitability for the BTWEA was completed and concerns were raised about the proposal.  The Employment Personal Advisor outlined her concerns to the complainant.

The complainant continued to work on the business plan with the Enterprise Officer in ICRG.  He submitted this plan and the BTWEA application in June 2022.  Ms A received these documents on 17/06/2022.  Included in these documents was a letter from Revenue which confirmed that the complainant had registered as self-employed on 29/09/2021.  Ms A was concerned about this as it compromised one of the requirements of the scheme which was that the business cannot be pre-established. Ms A completed the assessment of suitability and did not recommend his application and then submitted her recommendation to the Deciding Officer. When she spoke with the complainant, he alleged that she based her recommendation on the colour of his skin. 

The complainant lodged a complaint with the Department, and this was reviewed and investigated.  The investigation officer found that there was no reason to overturn the decision.

Ms A gave evidence on oath on behalf of the respondent. She confirmed that she is a Higher Executive Officer and has worked on the Back to Work Enterprise Allowance Scheme (BTWEA).  She has been dealing with this scheme for about 7 years and her role is to undertake assessments of suitability for the scheme and then make a recommendation.  Ms A gave evidence in relation to the procedure which is laid down in the guidelines.  She dealt with the complainant’s application.  Ms A gave evidence that the complainant’s application was dealt with in a standard way and his application was treated the same an any other application. 

Ms A gave evidence that she raised issues with the complainant’s application.  She was concerned that other bodies were providing the same service free of charge and the complainant did not have qualifications for some of the services he proposed to offer.  Specifically, he had no qualifications in relation to translation or legal advice.  Ms A confirmed that once her assessment was completed it was sent to the complainant who would then sign it and send it to the local office.

Ms A confirmed that she received the complainant’s application in June 2021.  Assessments are done over the phone and the office was closed at that time due to COVID-19 restrictions.  There were no meetings taking place and Ms A confirmed that the complainant did ask for a meeting.

Ms A stated that she had a concern that the complainant had registered with Revenue as self-employed, and this should be notified to the Department of his change in circumstances. 

In undertaking the assessment Ms A confirmed that approval cannot be given for a pre-established business and hence her concern that the complainant had already registered with Revenue as self-employed.  She confirmed that this was not a factor which was taken into consideration in her assessment. 

Ms A clarified that her role is to make a recommendation to the Deciding Officer who then makes the final decision on an application. 

Ms A confirmed that the complainant made an allegation of racism to her, and she stated in evidence that she denied this.  The conversation with the complainant ended when he hung up the phone.  Ms A also stated that she did not know what racism the complainant was alleging at that time. Ms A also gave evidence that she had no knowledge of the complainant’s skin colour.  She said that she was very disturbed by this allegation.  Her role involves dealing with people from all walks of life and she always treats people respectfully.  In response to a question from the Adjudication Officer, Ms A stated that she had dealt with hundreds of applications of this nature and there is a high success rate.  The process involves the usual scrutiny that takes place when the use of public money is involved.

Ms A was cross examined by the complainant.  She was asked who was responsible for addressing any concerns in any application for a BTWEA application.  Ms A confirmed that it was for the applicant to address any concerns identified.  Ms A clarified that the Assessment of Suitability process gives applicants an opportunity to address any concerns.  Ms A was asked if she spoke with the complainant in relation to addressing any concerns and she confirmed that she did not as this was a matter for the local office.

Ms A was asked if she spoke with anyone in the Enterprise office.  She confirmed that she tried to speak with the Enterprise Officer who was dealing with the complainant, but this person was on annual leave.  She confirmed that she spoke with another Enterprise Officer on 24/06/2022.  Ms A confirmed that she sent her recommendation to the Deciding Officer on 24/06/2022 and outlined that she was not recommending the complainant’s application and outlined her reasons in the letter.  Ms A was asked where the recommendation of the Enterprise Officer was, and she directed the complainant to a copy of the form which was signed by the Enterprise Officer.

Ms A was asked if she was satisfied that her assessment was carried out in accordance with the process guidelines.  She confirmed that the process is that all the documents are reviewed and her recommendation in this case was based on the business plan submitted.  In doing so Ms A outlined that she looked at who was already providing the information and then looked at the viability and sustainability of the proposal before making a recommendation.

The complainant wished to pursue a number of questions from Ms A in relation to her personal suitability and credentials for the role and as Ms A had given no evidence in relation to this the Adjudication Officer asked the complainant to cease this line of questioning.

This is a complaint of discrimination and seeking adjudication by the Workplace Relations Commission under Section 21 of the Equal Status Act, 2000.  There are essentially two steps a complainant must take when submitting a complaint or complaints.   The first is serving notice on the respondent of the alleged discrimination and the second is submitting the complaint(s) to the WRC within 6 months from the date of the alleged discrimination or the date of its most recent occurrence. The usual notification to a respondent is by way of form ES.1 The complainant sent the form ES. 1 to the respondent on 10/10/2022.  I am satisfied that he has complied with the notification requirements and there were no issues raised by the respondent in relation to this matter.

At the outset of the hearing the Adjudication Officer clarified for the complainant that his role is to investigate the complaint of discrimination and to hear evidence in relation to this complaint.  The Adjudication Officer clarified that he had no role in relation to the merits or otherwise of the complainant’s application for the BTWEA application.  While the complainant confirmed that he understood this he gave evidence that he was seeking: “To reverse the decision of the Department and approve my application.  An apology from the Department for how I am treated by the Department and compensation for the stress, denying the service, loss of customer and income”.

First the actual law in relation to definitions of discrimination must be examined.

Section 3 of the Act provides:

3.(1) For the purposes of this Act discrimination shall be taken to occur—

(a) 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) or, if appropriate, subsection (3B) (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) where 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 of paragraph (a), constitute discrimination,

or

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. 

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(a) that one is male and the other is female (the “gender ground”),

(b) that they are of different civil status – (the civil status ground”),

(c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”),

(d) that they are of different sexual orientation (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 (the “religion ground”),

(f) subject to subsection (3), that they are of different ages (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 (the “disability ground”),

(h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”)

(i) that one is a member of the Traveller community and the other is not (the “Traveller community ground” )..

(3B) For the purposes of section 6(11)(c), the discriminatory grounds shall (in addition to the grounds specified in subsection (2)) include the ground that as between any two persons, that one is in receipt of rent supplement (within the meaning of Section 6(8), housing assistance (construed in accordance with Part 4 of the Housing (Miscellaneous Provisions) Act 2014) or any payment under the Social Welfare Acts and the other is not (the “housing assistance ground”).

The relevant clauses in this case are Section 3 (1) (a) and Section 3 (2) (h). In order for his claim to succeed, the complainant must have been “treated less favourably than another person” on the ground that they are of different race, colour, nationality or ethnic or national origins.  

The onus is on the complainant in the first instance to discharge the burden of proof that an inference of discrimination may be drawn from the established facts, this is the ‘burden of proof’ on him to establish a prima facie case.  If he succeeds, then the burden of proof shifts to the Respondent to prove that it has not discriminated against the complainant.

Burden of proof.

38A of the Act provides:

38A.— (1) Where in any proceeding’s facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the Respondent to prove the contrary.

Section 38A refers to the requirement to “establish facts” to create a presumption that “prohibited conduct” i.e., discrimination occurred.

It is well established law that in order for the complainant to succeed a prima facie case must be made out by a complainant.  

In this case the evidence adduced was that the complainant’s application went through the normal process of assessment of suitability by an officer of the Department who is tasked with this responsibility.  The evidence is that this officer makes a recommendation which is then forwarded to a Deciding Officer.  In relation to the complainant’s contention that he was discriminated against by the respondent on the ground of race, no evidence has been submitted by the complainant to discharge the burden of proof that he has been treated less favourably than another applicant of a different race, colour, nationality or ethnic or national origins. 

In the case of Arthurs Valpeters v Melbury Developments Ltd [2010] ELR64 the Labour Court found:

” Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

I find therefore that this complaint to be not well founded.

As no evidence has been submitted by the complainant to discharge the burden of proof, I have decided that the complaint is not well founded, and the respondent has not discriminated against the complainant.

Discrimination. Race ground.

Complainant

Respondent

Parties

Oliver  Natale

Department Of Social Protection

Complainant

Respondent

Anonymised Parties

Representatives

  Self

Roderick Maguire, BL, instructed by Chief State Solicitors Office

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00053715-001

14/11/2022

The Complainant submitted an application to the Department of Social Protection for assistance under the Back to Work Enterprise Allowance (BTWA). This application was not approved, and the complainant submits that it was not approved due to this race.  The respondent refutes this allegation.

In this decision I have exercised my discretion and anonymized the names of the attendees of the Department of Social Protection in view of the concerns highlighted at the hearing.

I have also decided to anonymize the names of the complainant’s support friends.

The complainant was not represented and gave his evidence on oath. The complainant contacted the Department of Social Protection as he wanted to participate in the Back to Work Enterprise Scheme.  He had an initial telephone interview with an officer from the Inner-City Enterprise Office to discuss his proposed project.  The complainant registered for training and on completion of this an application was made on his behalf to the Intro Office.   The complainant submits that he received a telephone call from Ms A who is a case officer in the Department of Social Protection. She noted that the complainant had registered with Revenue as self-employed from September 2021.  She advised the complainant that in view of this he should inform Social Welfare.  The complainant asked Ms A if she would meet him to discuss is proposed project.  She informed him that she had rejected his application and the complainant replied that this was racism and that when he sends a cv people read his name they reject his application.  Ms A denied that she was racist.

The complainant made a complainant to the Department on 21/06/2021 against Ms A on the basis that she rejected his application without giving him an interview and refusing to meet him in person. 

His complaint was advised by Mr B that the complaint would be investigated by an Employment Service Manager from another area.  The outcome of this investigation was communicated to him by letter on 01/-09/2021 and the outcome was that the Employment Service Manager agreed with the initial decision to refuse the application.

The complainant had various contact with the Department in relation to the refusal to accept his application.  He submits that his application was not dealt with in accordance with the process which is outlined.  Specifically, he had no one-to-one meeting and there was no discussion with him in relation to the eligibility criteria.  If an application is not successful it should not be referred to the local office, but a letter of refusal should be issued to the applicant and a copy sent to the local office.

The complainant believes that the decision to refuse his application was based on false information.  He did not state that he intended to provide legal services but rather that he intended to advice clients in relation to legal matters they were dealing with.  The case officers are obliged to adhere to the procedures in order to ensure a fair and equal opportunity for all in the assessment of their applications.

The complainant is seeking a reversal of the Department’s decision and an apology from the Department in relation to the way he was treated and compensation “for the stress, denying the service, loss of customer and income”.

The complainant was cross examined by Mr Maguire, BL on behalf of the respondent. It was put to the complainant that in his evidence he outlined what he is seeking and in doing so there is no reference to any issue in relation to race.  In that context his complaint is about the process.  The complainant outlined that the procedure was not properly followed because of his race.  The complainant confirmed that he spoke to Ms A on 15/10/2021 and she outlined what she saw as problems with the proposal, and she outlined the Assessment of Suitability process.   The complainant stated that this conversation was more about his having registered as tax and the need for the Department to be informed.

It was put to the complainant that Ms A did not devise the term legal advice.  His application stated that he was prospering to offer one to one advice on a number of matters including advice on legal documents.  The complainant did not agree that this constituted legal advice.  It was put to the complainant that he signed the Assessment of Suitability form on 20/10/2021.  He confirmed that he did but that he did not read the entire document once he saw a negative comment on the first page.  It was put to the complainant the Ms A will give evidence that she raised several issues in relation to the complainant’s [proposal with him.  The complainant stated that the conversion was confined to the tax issue and nothing else.

It was also put to the complainant that Ms A will give evidence that she is not racist, and the complainant stated that he believed that she was racist towards him.  This occurred when she spoke to him on the phone and did not mention what documents were needed and her refusal to meet him was also a factor. 

It was put to the complaint that he had ten meetings with Mr C in relation to this matter and he agreed that he had. 

The complainant was asked to explain how Ms A discriminated against him on the basis of his skin colour.  He outlined that her refusal to meet him as racist.  The complainant was asked how the colour of his skin could be a factor.  He stated that the way she was talking to him was the reason he stated this.  The complainant stated that no one discussed the application with him and the telephone call with Ms A lasted six or seven minutes.

It was put to the complainant that the reason his application was not approved was because his business plan was flawed, and race was not a factor.  The complaint stated that he believes that race was a factor.

The respondent by way of written submission requested the Adjudication Officer to exercise their power under Section 42(1) of the Workplace Relations Act 2015 to dismiss this claim as being frivolous or vexatious.  There was no evidence proffered by the complainant that his race had anything to do with the decision to refuse his application for the BTWEA.  It was submitted that a basic review of the complainant’s application would show that the complainant was going to provide services already readily and freely available from the state.

This application was not granted, and a hearing proceeded to hear the substantive case.

The respondent submitted by way of explanation that the BTWEA is an incentive for people who are in receipt of a qualifying Social Welfare payment to develop a business while allowing them to retain a reducing proportion of their qualifying Social Welfare Payment over two years.

The complainant in November 2020 was referred to the Enterprise Officer in the Inner ity Renewal Group (ICRG).  The complainant was working with the Enterprise Officer to prepare a business plan.  On 15/10/2021 and assessment of suitability for the BTWEA was completed and concerns were raised about the proposal.  The Employment Personal Advisor outlined her concerns to the complainant.

The complainant continued to work on the business plan with the Enterprise Officer in ICRG.  HW submitted this plan and the BTWEA application in June 2022.  Ms A received these documents on 17/06/2022.  Included in these documents was a letter from Revenue which confirmed that the complainant had registered as self-employed on 29/09/2021.  Ms A was concerned about this as it compromised one of the requirements of the scheme which was that the business cannot be pre-established. Ms A completed the assessment of suitability and did not recommend this application and then submitted her recommendation to the Deciding Officer. When she spoke with the complainant, he alleged that she based her recommendation on the colour of his skin. 

The complainant lodged a complaint with the Department, and this was reviewed and investigated.  The investigation officer found that there was no reason to overturn the decision.

Ms A gave evidence on oath on behalf of the respondent. She confirmed that she is a Higher Executive Officer and has worked on the Back to Work Enterprise Allowance Scheme (BTWA).  She has been dealing with this scheme for about 7 years and her role is to undertake assessments of suitability for the scheme and then make a recommendation.  Ms A gave evidence in relation to the procedure which is laid down in the guidelines.  She dealt with the complainant’s application.  Ms A gave evidence that the complainant’s application was dealt with in a standard way and his application was treated the same an any other application. 

Ms A gave evidence that she raised issues with the complainant’s application.  She was concerned that other bodies were providing the same service free of charge and the complainant did not have qualifications for some of the services he proposed to offer.  Specifically, he had no qualifications in relation to translation or legal advice.  Ms A confirmed that once her assessment was completed it was sent to the complainant who would then sign it and send it to the local office.

Ms A confirmed that she received the complainant’s application in June 2021.  Assessments are done over the phone and the office was closed at that time due to COVID-19 restrictions.  There were no meetings taking place and Ms A confirmed that the complainant did ask for a meeting.

Ms A stated that she had a concern that the complainant had registered with revenue as self employed and this should be notified to the Department of his change in circumstances. 

In undertaking the assessment Ms A confirmed that approval can not be given for a pre-established business and hence her concern that the complainant had already registered with Revenue as self-employed.  She confirmed that this was not a factor which was taken into consideration in her assessment. 

Ms A clarified that her role is to make a recommendation to the Deciding Officer who then makes the final decision on an application. 

Ms A confirmed that the complainant made an allegation of racism to her, and she stated in evidence that she denied this.  The conversation with the complainant ended when he hung up the phone.  Ms A also stated that she did not know what racism the complainant was alleging at that time. Ms A also gave evidence that she had no knowledge of the complainant’s skin colour.  She said that she was very disturbed by this allegation.  Her role involves dealing with people form all walks of life and she always treats people respectfully.  In response to a question form the Adjudication Officer, Ms A stated that she had dealt with hundreds of applications of this nature and there is a high success rate.  The process involves the usual scrutiny that takes place when the use of public money is involved.

Ms A was cross examined by the complainant.  She was asked to who was responsible for addressing any concerns in any application for a BTWA application.  Ms A confirmed that it was for the applicant to address any concerns identified.  Ms A clarified that the Assessment of Suitability process gives applicants an opportunity to address any concerned.  Ms A was asked if she spoke with the complainant in relation to addressing any concerns and she confirmed that she did not as this was a matter for the local to office.

Ms A was asked if she spoke with anyone in the Enterprise office.  She confirmed that she tried to speak with the Enterprise Officer who was dealing with the complainant, but this person was on annual leave.  She confirmed that she spoke with another Enterprise Officer on 24/06/2022.  Ms A confirmed that she sent her recommendation to the Deciding Officer on 24/06/2022 and outlined that she was not recommending the complainant’s application and outlined her reasons in the letter.  Ms A was asked where the recommendation of the Enterprise Officer was, and she directed the complainant to a copy of the form which was signed by the Enterprise Officer.

Ms A was asked if she was satisfied that her assessment was carried out in accordance with, he process guidelines.  She confirmed that the process is that all the documents are reviewed and her recommendation in this case was based on the business plan submitted.  In doing so Ms A outlined that she looked at who was already providing the information and then looked at the viability and sustainability of the proposal before making a recommendation.

The complainant wished to pursue a number of questions from Ms A in relation to her personal suitability and credentials for the role and as Ms A had given no evidence in relation to this the Adjudication Officer asked the complainant to cease this line of questioning.

This is a complaint of discrimination and seeking adjudication by the Workplace Relations Commission under Section 21 of the Equal Status Act, 2000.  There are essentially two steps to a complainant when submitting a complaint or complaints.   The first is serving notice on the respondent of the alleged discrimination and the second is submitting the complaint(s) to the WRC within 6 months from the date of the alleged discrimination or the date of its most recent occurrence. The usual notification to a respondent is by way of form ES.1 The complainant sent the form ES. 1 to the respondent on 10/10/2022.  I am satisfied that he has complied with the notification requirements and there were no issues raised by the respondent in relation to this matter.

At the outset of the hearing the Adjudication Officer clarified for the complaint that his role to investigate the complaint of discrimination and to hear evidence in relation to this complaint.  The Adjudication Officer clarified that he had no role in relation to he merits or otherwise of the complainant’s application for the BTWEA application.  While the complainant confirmed that he understood this he gave evidence that he was seeking: “To reverse the decision of the Department and approve my application.  An apology from the Department for how I am treated by the Department and compensation for the stress, denying the service, loss of customer and income”.

First the actual law in relation to definitions of discrimination must be examined.

Section 3 of the Act provides:

3.(1) For the purposes of this Act discrimination shall be taken to occur—

(a) 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) or, if appropriate, subsection (3B) (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) where 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 of paragraph (a), constitute discrimination,

or

( c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. 

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

( a) that one is male and the other is female (the “gender ground”),

( b) that they are of different civil status – (the civil status ground”),

( c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”),

( d) that they are of different sexual orientation (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 (the “religion ground”),

( f) subject to subsection (3), that they are of different ages (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 (the “disability ground”),

( h) that they are of different race, colour, nationality or ethnic or national origins (the “ground of race”)

( i) that one is a member of the Traveller community and the other is not (the “Traveller community ground”)..

(3B) For the purposes of section 6(11)(c), the discriminatory grounds shall (in addition to the grounds specified in subsection (2)) include the ground that as between any two persons, that one is in receipt of rent supplement (within the meaning of Section 6(8), housing assistance (construed in accordance with Part 4 of the Housing (Miscellaneous Provisions) Act 2014) or any payment under the Social Welfare Acts and the other is not (the “housing assistance ground”).

The relevant clauses in this case are Section 3 (1) (a) and Section 3 (2) (h). In order for her claim to succeed, the Complainant must have been “treated less favourably than another person” on the ground that they are of different race, colour, nationality or ethnic or national origins.  

The onus is on the Complainant in the first instance to discharge the burden of proof that an inference of discrimination may be drawn from the established facts, this is the ‘burden of proof’ on her to establish a prima facie case.  If she succeeds, then the burden of proof shifts to the Respondent to prove that it has not discriminated against the Complainant.

Burden of proof.

38A of the Act provides:

38A.— (1) Where in any proceeding’s facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the Respondent to prove the contrary.

Section 38A refers to the requirement to “establish facts” to create a presumption that “prohibited conduct” i.e., discrimination occurred.

It is well established law that in order for the Complainant to succeed a prima facie case must be made out by a Complainant.  

In this case the evidence adduced was that the complainant’s application went through the normal process of assessment of suitability by an officer of the Department who is tasked with this responsibility.  The evidence is that this officer makes a recommendation which is then forwarded to a Deciding Officer.  In relation to the complainant’s contention that he was discriminated against by the respondent on the ground of race, no evidence has been submitted by the complainant to discharge the burden of proof that he has been treated less favourably than another applicant of a different race, colour, nationality or ethnic or national origins. 

In the case of Arthurs Valpeters v Melbury Developments Ltd [2010] ELR64 the Labour Court found:

” Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

I find therefore that this complaint to be not well founded.

As no evidence has been submitted by the complainant to discharge the burden of proof, I have decided that the complaint is not well founded, and the respondent has not discriminated against the complainant.

Discrimination. Race ground.