EDA2429

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00039440 (CA-00051065-002)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 21 September 2023. A Labour Court hearing took place on 24 July 2024.

The following is the Determination of the Court.

DETERMINATION:

This is an appeal by Ms Desmond the Complainant, against Adjudication Officer Decision ADJ-00039440 -CA-00051065-002 in a claim of discrimination on the ground of gender. The complaint was made pursuant to the Employment Equality Acts 1998-2015 (the Acts).  The Adjudication Officer did not uphold the complaint. This complaint is linked to ADE/23/105.

Background.

The Complainant submits that she was discriminated against on the grounds of gender when her comparator Ms O Riordan was regraded to acting Clinical Manager. The Respondent submitted that the Complainant had failed to identify a valid comparator and or a breach of the act during the relevant period. The Respondent asked that the Court deal with whether or not the Complainant had established a prima facia case of discrimination on the ground of gender during the cognisable period as a preliminary issue. The Complainant raised no objection to this. As the Complainant was a lay litigant, the Court took a number of breaks during the course of the hearing to allow the Complainant to consider her response to issues that arose.  The complaint was lodged with the WRC on the 9th June 2022 so the cognisable period for the purpose of the Act is 10th December 2021 to 9th June 2022. A case management conference was held on 20th February 2024 and a hearing was held on 24th July 2024.

 Preliminary issues.

The Court set out for the Complainant that in line with the requirements of the Act she would have to identify a comparator and that in a case of gender discrimination section 6 (2) of the Act defines the gender ground as “that one is a woman, and the other is a man”.  The Complainant noting that her submission contained a female comparator informed the Court that she wanted to revert to the two comparators she had named in her original complaint, Mr X and Mr Y.  The Complainant submitted that the act of discrimination she was relying on was an email from the WRC of 13th December 2021 stating that her case was closed as the HSE were unwilling to engage in the matter. Attached to the email were two letters dated 25th June and 23rd September 2021.  The Complainant was asked to set out how this correspondence was related to her gender and how her comparators were treated differently. She was unable to address those two issues.

 The Respondent submitted that the comparators identified were not valid comparators as they were   different grades to the Complainant. The email and the attached letters that the Complainant is seeking to rely on were from the WRC and not the Respondent. The attached letters which predate the cognisable period were setting out clarification of an agreement and cannot constitute an act of discrimination.

Decision.

 Even if the Court were to accept that the comparators are valid comparators for the purpose of the Act, the Complainant has failed to provide any information as to how the email of the 13th December 2021 was related to her gender, and how her comparators were treated differently. The Court finds that the Complainant has failed to establish a prima facia case of discrimination during the cognisable period and therefore, her complaint must fail.

The appeal fails. The decision of the Adjudication Officer is upheld.

 The Court so determines.   

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
15 August 2024	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Aidan Ralph, Court Secretary.