ADJ-00043815

Complainant

Respondent

Parties

Geraldine  Byrne

B. Vincent Hoey & Co

Representatives

  Self-Represented

 Aaron Shearer BL

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-00054110-001

09/12/2022

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

CA-00054110-002

09/12/2022

The Complainant alleged she was discriminated on the ground of her age with regard to a other employees (CA-00054110-001) and she had not received equal pay (CA-00054110-002) . The Respondent denied any discrimination took place and that the Complainant had not established a prima facie case and it had no case to answer.

The Complainant is employed as a Legal Secretary in the Litigation Department f0r 14 years. The Complainant worked for a Partner until 2104 and then for an Assistant Solicitor. The Complainant advised she has worked as a Legal Secretary since 1972. The Complainant submitted a written statement in advance of the Hearing and relied on this statement in giving her evidence. In summary, the Complainant set out the following claims:

The Complainant alleged that younger and newer staff and other staff had received a pay increase of between 3k to 5k. The Complainant stated this was discrimination because of her age. The Complainant brought the issue to a Partner but did not receive an adequate response from her perspective.

The Complainant advised she was asked to sign a contract in 2018 and was told if she did not sign it she would not get a pay increase. The Complainant advised she signed this contract under duress.

The Complainant advised she was let go on a temporary basis in 2020 due to Covid along with others. She contacted the Respondent about her return date and received no reply.  The Complainant alleged that a younger employee with less service was taken back to work after Covid prior to the Complainant and this was discriminatory on the basis of her age.

The Complainant set out other issues concerning her working environment and conditions but these are not the subject of this complaint assessment and therefore it is not appropriate to address them in this Decision.

The Complainant claimed that she has been discriminated against in her employment and that she has not received equal pay. The Complainant asserted that the alleged discrimination was on the basis of her age and contended that she has received less favourable treatment than younger, newer members of the firm’s secretarial staff. The Respondent asserted that the Claim Form did not have anything beyond bare assertions that the Employment Equality Act has been breached.

The central contention made by the Complainant was that herself and another colleague (who the Complainant describes as the oldest secretaries in the firm) were overlooked for a pay rise whilst other “younger and newer staff members who are only here three to six years got pay rises of between €3,000 and €5,000.”

A further allegation was made to the effect that the Complainant’s return to work following the cessation of office work due to Covid 19 was improperly delayed and that “another younger and newer secretary” was brought back to work before the Complainant.

The Respondent stated that there were no details provided of the age of the staff who were given pay rises, the age of the member of staff who returned to work before the Complainant, the date on which that member of staff returned and specific details of the alleged inequality in pay.

In terms of the age profile of staff in the Respondent’s office, the Complainant (and her colleague who has made the same claim) are both in their 60s. Of the solicitors in the office, three are 60 years or over. Of the other secretarial staff, one is in her late 50s, most of the rest are in their 40s whilst one secretary is in her 30s. Another member of staff, now in her 70s, did not return to work after Covid 19. The age profile of the people working in the office cannot be described as youthful and was the Respondents case that they clearly do not discriminate on the grounds of age in terms of those it employs.

The Respondent was very conscious that the Complainant remains an employee of the firm and will continue to be an employee after the within complaint has been heard. For that reason engagement with some of the allegations made in the Complainant’s Claim Form is difficult.

As a general comment on the allegations made, the Respondent submitted that the Complainant entirely mis-characterized the working environment in the firm. More specifically, it was submitted that the Complainant conflates two separate and distinct issues. Whilst not accepting the Complainant’s characterization of the working environment, the case made by her conflates an interpersonal tension at work with age discrimination. Interpersonal tensions and age discrimination are clearly not the same thing and the entire basis of the claim made is an assertion that they are.

It was submitted that the reference by the Complainant to “newer” staff is legally irrelevant in that newer, or more recently appointed staff, could theoretically be older than the Complainant. Discrimination on the grounds of newness (which is denied) is not a basis for a claim under the Employment Equality Acts.

To make out an entitlement to redress, it was submitted that the Complainant must show that she, because she is in her 60s, is being treated less favourably than people who are either in their late 50s and 40s. It was submitted that this is an untenable legal position, or at the very least a novel one.

It was submitted that the Complainant has not made out the case that she is being differently and less favourably treated at work. It was further submitted that even if the Adjudicator were to find that the Complainant is being differently and less favourably treated at work (and it was submitted that she is not) that she has not made out the case that the different or less favourable treatment has any relation to the Complainant’s age.

It was submitted that the Complainant is not entitled to the reliefs sought.

The Respondent mainly set out its case that the Complainant had not established there was a prima facia case to answer in their cross examination of the Complainant. The Respondent was very conscious of the fact the Employee would be continuing to work for them in the future and they wanted to try minimise any disruption to that relationship due to the hearing of this complaint.

The relevant legislation is as follows;

“Discrimination for the purposes of this Act.

“6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) a person who is associated with another person—

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination.]

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

(f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “the age ground”),

(3)  (a) The age ground applies only in relation to persons above the maximum age at which a person is statutorily obliged to attend school.

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

The Complainant was cross examined on her evidence by the Respondent Representative. The Complainant made a variety of assertions relating to pay issues and operating conditions for her in the office. The Complainant asserted that other staff got a pay rise of 3k to 5k and she asked for same on August 24th 2022.  The Complainant advised a Secretary with less service was brought back to work before the Complainant. The Complainant advised that she was informed the Solicitor she worked for was coming back to work on August 3rd 2021 and she had options of 3/5 days work and that another Secretary was leaving at the end of that month. The Complainant advised she returned to work on August 3rd 2021 but the Partner avoided her. The Complainant advised she did not get new terms of work. The Complainant advised that she felt victimised since 2015 and that work experience people would be introduced around the office to other staff but not to the Complainant. 

Under cross examination the Complainant did not provide any named comparators or comparison of work. The Complainant was asked about the alleged treatment and she claimed it was due to her age and that her narrative was not accepted by the Respondent. The Complainant stated she was about 60 when she alleges the age discrimination started around 2015. The Complainant alleged she had excessive work since then. The Respondent Representative put it to the Complainant that her allegations must relate to her age and not that she was old. The Complainant agreed with the Respondent Representative that giving work to a colleague with less service was not ageism and her claim had to be related to age discrimination not length of service. The Complainant was asked did she make any complaints about ageism since 2015 and the Complainant advised she had not until the WRC complaint was submitted.  The Complainant was asked why she did not make a complaint at the time when the newer colleague came back to work and the Complainant advised she worked in legal firms for a number of years and made enquiries with colleagues and she expected that the Partner would not reply to her. It was put to the Complainant that the work the newer colleague came back to do was conveyance work and this was not the Complainants field of work. The Complainant stated that she had some experience of that work years ago and it was not her favourite type of work.

It was put to the Complainant that what she outlined was a dissatisfaction with the firm and the Partner and had nothing to do with age. The Complainant was asked to state who got the pay rise she alleges was discriminatory and the Complainant replied “everyone in the office”.  It was put to the Complainant that none of the pay rises she alleged took place happened. The Complainant made no reply. The ages of the solicitors in the office were put to the Complainant and the Complainant agreed they they were all of a similar age to the Complainant. The Complainant was asked at what point were the Comparators younger and the Complainant stated it is the way she is treated by the Partner compared to others.  

It was put to the Complainant that what she was alleging were observations and that she had an obligation to make out a prima facia case and that all she was putting forward were assertions and that nothing she alleged was related to age. The Respondent put it to the Complainant that her allegations arise out of hearsay and she was impugning the reputation of the firm. The Complainant stated she had only seen the Respondent statement that day. (The opportunity to adjourn or take time out to review the Respondent statement was given to the Complainant at the start of the Hearing but the Complainant declined this offer).

Burden of Proof

Section 85A(1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act: “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The Labour Court – in its determination in Southern Health Board v Mitchell[2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held :“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination.

In Cork City Council v McCarthyEDA 21/2008, the Labour Court stated in this regard:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Melbury Developments Ltd v Valpeters[2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Having regard to the submissions of the Parties in this case, and the oral evidence adduced, the Adjudicator is of the view that the Complainant does not meet the burden of proof required by section 85A(1) of the Act. Having considered the submissions and the cross examination of the Complainant none of the claims of pay discrimination were backed up by any evidence or facts and no specific comparator was identified by the Complainant.  The allegation that a newer employee was bought back to work earlier by the Respondent was solidly explained by the Respondent on the grounds of relevant experience and that conveyance was the main work required in the office at that time, experience of which the Complainant agreed she had little of years ago and was not her favourite type of work. The Complainant agreed the bringing back of the newer employee was not discriminatory on age and that the complaint was primarily made out by the Complainant on length of service.

The Respondent requested that the Decision be anonymised due to the ongoing working relationship between the Parties but on consideration and in deference to the decision in Zalewski on open justice I have declined this request.

The Complainant has not met the threshold required under section 85A to transfer the burden of proof to the Respondent. The Adjudicator therefore, determines that the complaints are not well founded.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. I find that the Complainant has not established a prima facie case of discrimination based on any of the grounds under the Act and the two complaints are not well founded.  (CA-00054110-001 and CA-00054110-002).

No prima facia case