EDA2468

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00043525 (CA-00054361-001)

BACKGROUND:

The Employer appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 29 April 2024. Labour Court hearings took place on 11 December 2024.

The following is the Determination of the Court:

DETERMINATION:

1. Background to the Appeal

This is an appeal on behalf of Virgin Media Ireland Limited (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00043525, dated 29 April 2024) under the Employment Equality Act 1998 (‘the Act’). Notice of Appeal was received in the Court on 21 May 2024. The Court heard the appeal in Dublin on 11 December 2024.

2. The Factual Matrix

Ms Sian Shepherd (‘the Complainant’) has worked for the Respondent since 2014 as a Presentation and Scheduling Assistant. She worked in a similar role for the Respondent’s predecessors, TV3 and UTV, since 2006 other than during a one-year break when she worked in the United Kingdom for Disney and NBC Universal.

The Complainant availed herself of maternity leave between August 2021 and August 2022. In early October 2022, the Respondent advertised internally for the position of Scheduling Team Lead. The Complainant and four colleagues applied for the position.

The selection process comprised three elements: A Saville Wave psychometric self-assessment; a presentation and an interview on 11 October 2022 with a panel of three senior members of staff (one from Human Resources; the then-Head of Operations and the then-Entertainment Lead). The Complainant was placed joint third following the selection process. The Complainant and both candidates who finished ahead of her are parents of young children.

She was notified of the outcome by email dated 14 October 2022. The Complainant delayed meeting with the HR member of the interview panel to seek feedback on her interview until 6 December 2022. The Complainant’s initiating complaint under the Act was received by the Workplace Relations Commission on 5 January 2023.

3. The Complaint

The Complainant included the following narrative in her Workplace Relations Complaint Form:

“My complaint is discrimination following maternity leave. I have worked for Virgin Media Ireland for a total of 15 years. 8 years consecutively. I recently returned from maternity leave and was passed over on a promotion which I was led to believe I was the natural successor for. Prior to maternity leave I was the most senior member of the team, with the most experience and trained every other member (including the successful candidate). 2 years previously I was undertaking additional training for team leading with the head of HR, she was subsequently let go from the company. Where there had been gaps in management I was the acting leader, taking on additional responsibilities and being the point of contact for other departments. I have always been a diligent and dependable employee, going over and above what was required. Since returning from my maternity leave I applied for a supervisory role and was unsuccessful. In the interview feedback the HR manager informed me on two occasions that ‘timing is everything’. On returning from maternity leave I was excluded from key strategy meetings with the head of department and comments were made about ‘extended maternity leave’. Therefore I am firmly convinced that I was discriminated against in the promotion process because of my recent maternity leave.”

While presenting her case to the Court, the Complainant said that the core of her claim under the Act was that she had been marked down in the interview process on the flexibility and attitude criterion because she was the parent of a young child.

4. The 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.”

This 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 McCarthy EDA 21/2008, this 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”.

5. Decision

The Court, having carefully considered both the Complainant’s outline of her claim and her answers under cross-examination, finds that she has not established any facts from which it would be possible for the Court to infer that she may have been treated less favourably by the Respondent on grounds of her family status. By her own admission, the candidates that were placed ahead of her in the promotional competition that took place in October 2022 are both parents of young children. It follows that their family status is the same as hers. In those circumstances, and in the absence of the Complainant establishing any other relevant facts to ground her complaint, it is not open to the Court to find that the Complainant has made out a prima facie case of discrimination on the family status ground so as to cause the evidential burden to shift to the Respondent.

The Respondent’s appeal, therefore, succeeds and the decision of the Adjudication Officer is set aside.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
ÁM	______________________
12th December 2024	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Áine Maunsell, Court Secretary.