Complainant

Respondent

Parties

Nadjima Ghazouna Adda

Word Perfect Translation Services Limited

Representatives

John McNamara, McNamara Solicitors

Caroline Doyle BL instructed by E.P. Daly & Co Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00053361-001

20/10/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00053361-002

WITHDRAWN

20/10/2022

On 20 October 2022, the Complainant referred her claims to the Director General of the WRC.

The Respondent denies the claims.

The complaint bearing reference number CA-00053361-002 under section 6 of the Payment of Wages Act, 1991 was withdrawn at the adjudication hearing.

WRC complaint referral form

In her WRC referral form, the Complainant alleged that she was discriminated against by the Respondent by reason of her religion and race, and that she was dismissed for discriminatory reasons. The most recent date of discrimination was stated as 18 May 2022.

In the referral form the Complainant stated that she is an Algerian national and she is completing a PhD in University of Limerick. She was employed as an interpreter with the Respondent. She stated that she started in June 2021. On 19 May 2022, the Complainant received a letter terminating her employment.

The Complainant stated in the form that she had worked as an interpreter under a previous manager and things were ok. A new manager became her line manager around February 2022.

The Complainant stated that she was three minutes late for work as the bus was late and the manager treated her differently than the others. He told the Complainant that she would have to take the time out of her lunch break. He also told her that she would need to ask to take a break.

The Complainant stated that the manager’s attitude towards her was aggressive, and he would shout at her.

The Complainant stated that there were no complaints about her work.

The Complainant further stated that around 15/16 May 2022 at approximately 11am, she was sitting at her desk and the manager aggressively asked her what she was doing. The Complainant replied that she was filling out the bookings to which he mumbled “f…..g black”.

The Complaint further stated in the form that on 18 May 2022 at approximately 4.20pm, the manager telephoned her and in the course of the conversation he said to her words along the lines of “very f…..g stupid and f…..g Muslim”. The Complainant stated that she was shocked and very upset.

The Complainant stated in the complaint form that on 19 May 2022 she received a letter telling her that her employment was terminated.

The Complainant stated that she felt she has been discriminated against. The manager was Polish, and the other staff were French and Irish who are white and non-Muslim.

The Complainant stated that she is very upset by what happened and has flashbacks of the incident. She feels traumatised by the way she was treated and she continues to be upset about it. Her confidence was affected as well.

Summary of direct evidence and cross-examination of the Complainant

In her direct evidence, the Complainant said that she started working for the Respondent in June 2021. She said that she was first paid  in June or July 2021. She said that initially she started as an interpreter. Her hours of work varied and she worked from home. Everything was fine.

The Complainant said that about December 2021/January 2022, she started working in the office doing mainly admin work. The Complainant said that there were five other people in the office with her.

The Complainant said that a Polish manager (at the hearing, the Complainant said that Mr Gashi, the manager who attended the hearing was the manager in question) was shouting at her all the time. She thought that she was not like the others, she was wearing hijab, she was Muslim. The manager was ok with the other employees.

The Complainant said that another female employee told her that she should stand up for herself. The Complainant said that there were no complaints about her work, she was performing well, the manager mistreated her because she was Muslim.

The Complainant said that straight after she started in the office, she had one meeting with Mr Gashi, but no performance issues were raised. She said that she had no training, one of the employees showed her what do to. She never received an employee handbook.

The Complainant was asked by her solicitor to describe the incidents of 15/16 May and 18 May 2022 which she had outlined in her complaint form. The Complainant could not recall the incidents. The Complainant was prompted by her solicitor and by the Adjudication Officer to describe the incidents she had referred to in her complaint form. She replied that the manager was “all the time” shouting at her. She said that she remembered that he said “f…..g Muslim” but she could not recall the date.

The Complainant said that she needed to go for a maternity appointment, and she did not feel she was treated the same as others. The Complainant confirmed that she was permitted to go to the appointment. She said that Mr Gashi shouted at her before she left that she was not doing her job properly.

The Complainant said that she spoke with Ms Kiely about it and that everyone in the office knew what was happening. She was told to stand up for herself.

The Complainant said that she was dismissed because she was the only one who was “different”.

In cross-examination, the Complainant confirmed that she signed her contract of employment and the confidentiality agreement on 18 August 2021 and received her first pay in September. It was put to the Complainant that she could not have started before she signed her contract and the confidentiality agreement. She did not dispute that her contract makes reference to the handbook and that she signed a statement which confirmed that she received the staff handbook. She asserted that she did not receive it despite the signature.

It was put to the Complainant that the staff handbook states on page 9 that the grievance and disciplinary policies are appended in appendix 8, and the harassment policy in appendix 9. She received both. The Complainant said that she did not receive them. It was put to the Complainant that the staff book also noted that disciplinary procedure did not apply on probation.

It was put to the Complainant that she did not move to the office in December 2021/ January 2022 but in March 2022. She said that she could not remember but accepted that it could be March 2022.

It was put to the Complainant that the Respondent thought that she was good as an interpreter and offered her an admin role. When she moved to the office, she received a new contract. The Complainant accepted that she signed and received a copy of the new contract. It was put to the Complainant that her salary was not €2,000 per month but €24,00 pro rata. She agreed that she had different duties in the new role, and it was fast-paced role. The Complainant agreed that she shadowed the Office Manager until she felt comfortable, and she would ask for help if she had any difficulties afterwards. The Complainant disputed that she struggled to get up to speed in the new role.

The Complainant agreed that the office was small and there were 6 desks. She did not dispute that three employees were French including one named female employee who was Muslim, the Office Manager was Irish, she thought that Mr Gashi was Polish.

It was put to the Complainant that she could not recall the events that allegedly happened on 15/16 May 2022 and twice she said that she could not remember them. It was further put to the Complainant that the office is small and other people would hear if she was shouted at. The Complainant said that they would not if the manager was shouting over the phone.

The Complainant confirmed that she never made a complaint and there is no record that she had ever spoken to anyone in the company about the matter. The first mention of her complaint was her solicitor’s letter of 2 June 2022.

Concluding remarks

At the adjudication hearing, in his closing remarks, Ms McNamara said that the Complainant was treated less favourably than other employees such as Ms Kiely in that Mr Gashi shouted at her and mistreated her. She was dismissed because of her race and religion and not because of her performance which was used as a smoke screen.

RESPONSE TO COMPLAINTS AND PRLIMINARY OBJECTION:

The Respondent raises a preliminary objection in respect of the Complainant’s complaints to the WRC in circumstances where she has fundamentally failed to set out or provide full and detailed particulars of her claims against the Respondent. The Respondent is entitled to know the case against it and is thereby prejudiced by having to meet and defend complaints which have not been properly or adequately particularised. In the above circumstances, the Respondent reserves the right to seek a dismissal of the Complainant’s complaints, or in the alternative, an adjournment of the within action and a direction requiring the Complainant to precisely set out her claims so as to allow the Respondent to adequately prepare its own case and not be taken by surprise at the hearing of the action.

It is denied that the Complainant’s employment commenced on 1 June 2021, as alleged in her complaint form to the WRC. The Respondent submits that the Complainant commenced her employment on 18 August 2021. It is denied that the date upon which the Complainant’s employment ended was 19 October 2022, as set out in her complaint form. It is assumed this is an error in the form, but for the avoidance of doubt, the Complainant’s employment ended on the 25 May 2022.

The Respondent is a total stranger to the Complainant’s complaint that she was subjected to discriminatory treatment in respect of her race, ethnicity or religion during the course of her employment with the Respondent. More specifically, the Respondent is a total stranger to the Complainant’s allegation that she was subjected to insulting, derogatory or abusive language by a Polish manager, as alleged in her complaint form. It is noted that the Complainant has failed to identify this person, but for the avoidance of doubt, the Respondent submits that at the time of the Complainant’s employment, there was no Polish manager either overseeing the Complainant’s work or working in management whatsoever. In light of the above, it is denied that the Complainant was subjected to discriminatory treatment during the course of her employment with the Respondent in the manner alleged. It is further denied that the Complainant was subjected to a discriminatory dismissal contrary to the provisions of the Employment Equality Acts. It is the Respondent’s case that the Complainant was dismissed during her probationary period on performance related grounds.

In the above circumstances, it is submitted that the Complainant is not entitled to any form of redress under the Employment Equality Acts.

BACKGROUND:

Mr Jimmy Gashi is the Operations Director of the Respondent company, which provides a range of interpreting and translation services throughout Ireland. The company employs a total of 752 professional employees, including translators, interpreters and administrative staff. Owing to the nature of the work, the company has a very diverse workforce and employs a multitude of different nationalities. This is fundamentally necessary to carry out its services to bodies such as the Department of Justice, the Refugee Application Commissioners, the Refugee Appeals Tribunal etc.

The Complainant joined the Respondent company on 18 August 2021 in the capacity of a French and Arabic interpreter. She received her first payslip on 15 September 2021 in which she is identified as an ‘Interpreter’ .

The Complainant was provided with an Interpreter’s Contract of Employment, which she signed on 18 August 2021. Her contract stipulated that she was employed on a part-time basis for occasional work which was entirely dependent on her own availability. The Complainant was paid an hourly rate of anywhere between €12 - €36 depending on whether the work was undertaken during or outside of normal business hours. For the avoidance of doubt, this was a zero-hour contract based on the availability of the Complainant and there was no fixed salary of €2,000 (gross) per month attached to same as claimed by the Complainant. The contract further outlined that the company had in place an employee handbook and stipulated that the Complainant was “required to comply with the Company’s rules, regulations and policies from time to time in force. These are set out in the employee handbook and any changes will be notified to you.”

Further, at paragraph 2.6, the Complainant’s contract outlined as follows:-

The Company is committed to having a workplace free of harassment, bullying and/or discrimination. Harassment or discrimination on the grounds of gender, marital status, family status, sexual orientation, race, age, disability, religion or membership of the travelling community shall not be tolerated. Bullying of any employee shall not be tolerated. If any issue arises we encourage any employee affected to see the employer Bullying Prevention Policy. In the case of any allegations of harassment or discrimination we encourage any employee affected to see the employer Anti Harassment Policy. Both of these are in our Handbook.

The Complainant performed well in her role as an interpreter with the company and because of this, she was subsequently offered an opportunity to take on an entirely new office-based role within the Limerick office. On 2 March 2022 the Complainant moved into her new role as an Office Administrator/Project Co-Ordinator, working circa 20 hours per week. She received her first payslip on 15 March 2022, in which she is identified as ‘Office Staff’.

The Respondent submits that the Complainant was provided with a new contract of employment on starting her new position. Paragraph 2 of the Office Administrator/Project Co-Ordinator’s contract included a specific stipulation in relation to the probationary period, as follows:-

A probationary period of 6 months will be effective from the date of joining the Company. During this period your performance will be regularly reviewed and if you complete the period satisfactorily you will be notified in writing of your appointment to the Company’s permanent staff. At any time during your probationary period your employment may be terminated by 1 week notice in writing from the Company. If you wish to terminate your employment during your probationary period you must give the Company 1 weeks’ notice in writing. The Company reserves the right to extend the probationary period for the better assessment of your performance. You will be notified in writing if the Company extends the probationary period. Once you have successfully completed the probationary period your employment may be terminated in accordance with the clauses as set out below.

The Respondent further operated a Staff Handbook which set out the company’s main policies and procedures. The Respondent submits that the Complainant was provided with a copy of same on joining the company. The Complainant was also alerted to the existence of same within her interpreter’s contract. The handbook included information on the company’s grievance and disciplinary procedures, as well as its harassment policy. The handbook also included further information on the Respondent’s probationary policy, as follows:-

The disciplinary procedure does not come into effect during the probationary period. Probationary periods are set out in employees’ individual contracts. The duration is at the sole discretion of the Company and may be extended at the discretion of the Company.

Amongst other things, the Complainant’s duties as an Office Administrator/Project Co-Ordinator included the following;-

·        Answering a busy switchboard;

·        Scheduling and arranging interpreter bookings;

·        Ensuring efficient and timely communication with clients;

·        General customer service/first point of contact with visitors to the office;

·        Engaging with and carrying out requests by company management.

The Complainant received training in respect of her new role when she moved into it. Amongst other things, she was shown how to use the internal systems, the steps to follow in the process of booking interpreters and confirming their availability, and how to answer the phones and transfer calls to the relevant person. The Complainant worked closely with colleagues whose tasks she was required to shadow until she was confident to work on her own. The Respondent submits that staff members, and in particular, Ms Sinead Kiely, was on hand to assist and provide guidance to the Complainant at all times.

On 19 May 2022, the Complainant was presented with a letter advising her that her employment was to be terminated and her last day was to be 25 May 2022. The letter stated as follows:-

It is with regret we are hereby notifying you that we wish to terminate your employment with Word Perfect Translations Ltd. As you are still on your probation period and in accordance with the terms of your contract, you are entitled to one week’s notice from today. Your last day with our company will be 25th May 2022.

The Respondent submits that the Complainant’s employment was terminated solely on performance related grounds. While she had performed well in her role as an interpreter, she failed to perform to the standard required of her in her role as an Office Administrator/Project Co-Ordinator.

The Respondent is a complete stranger to the events alleged by the Complainant on 15/16 and 18 May 2022. The Complainant did not have a Polish manager, as alleged. Further, the office where the Complainant was working at the time was a small open plan office and Ms Kiely’s desk was in the immediate vicinity of the Complainant’s. Photographs were provided showing the space in question. The Respondent submits that Ms Kiely will give evidence that she has no memory of the events which allegedly took place at the Complainant’s desk on the dates alleged. Ms Kiely will further say that she was friendly with the Complainant and no complaint was ever made to her about any particular issues with any member of staff.

The Respondent submits that prior to the Complainant’s dismissal, she failed to make any formal complaint/s against her manager in relation to discriminatory treatment. Despite having in place a variety of robust policies and procedures to deal with such complaints, the Complainant failed to utilise same.

The Complainant was paid in full during the course of her employment with the Respondent.

LEGAL SUBMISSIONS

DISCRIMINATION CLAIM – EMPLOYMENT EQUALITY ACTS 1998-2015:

Discrimination for the purposes of Section 6(1) of the Employment Equality Acts occurs 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) (in this Act referred to as the “discriminatory grounds.)”

Pursuant to Section 85A of the Acts, it is for the Complainant to establish a prima facie case of discrimination. To do so, the Complainant is required to first establish facts from which discrimination can be inferred, and it is only where such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference raised. The burden of proof which must be satisfied by the Complainant was summarised in Minaguchi v. Wineport Lakeshore Restaurant (EDA034) as follows:

“It appears to me that the three key elements which need to be established by a claimant to show that a prima facie case exists are: (i) that she is covered by the relevant discriminatory ground(s); (ii) that she has been subjected to specific treatment, and; (iii) that this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be.”

In the case at hand, in order to establish that the Respondent engaged in discrimination, the Complainant must prove that but for her race and religion, she would have been treated differently by the Respondent. In this regard, a comparator in a comparable situation who is, has or would be treated differently, is required. It is submitted that no relevant comparator has been put forward by the Complainant.

Further, it is submitted that the Complainant cannot demonstrate in any tangible way that because of the protected characteristics as set out in her claim, she received less favourable treatment than others. The Labour Court has clearly stated in the case of Melbury Developments Ltd v Arturs Valpetters (EDA0917) 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 case of Goode Concrete v Shaskova (EDA0919), is further instructive of this firmly entrenched position. In Shaskova the Labour Court stated that the “mere coincidence” of the Complainant’s nationality and her dismissal was not sufficient to shift the probative burden to the Respondent. In applying the dicta of the above case law, it is submitted that the Complainant has put forward bare assertions without any tangible evidence to prove her claims of discrimination by an unnamed manager. The Respondent holds no documentation to show any formal complaint was ever made against this alleged person.

In Spyra v Ryanair Ltd (EDA1428) the Labour Court had regard to the composition of the employer’s workforce, and in particular the fact that it employed a multi-racial workforce, which included a supervisory structure where foreign national workers were ranked in four of the top five positions. The Court found those figures did not indicate an inherent adverse bias in the design or conduct of a particular exercise it was carrying out against non-Irish workers or a bias against non-Irish workers in the outcome of the exercise. Similarly, in the case at hand, it is respectfully submitted that the Respondent operates a wholly diverse organisation with non-Irish nationals working in top positions. Furthermore, it is abundantly clear that due to the nature of the work, the company is entirely dependent on the linguistic skills of its multi-national workforce.

For the avoidance of any doubt, it is submitted that the Complainant was dismissed from her employment solely owing to performance related issues, and not because of her race or religion.

In all of the above circumstances, the Complainant has failed to discharge the burden of proof and consequently in the absence of any prima facie evidence her claim for discrimination cannot succeed.

Concluding remarks

In her closing remarks, Ms Doyle BL said that the burden of proof rests with the Complainant to establish a prima facie case. The Complainant did not name a comparator. Even if she did, it is not clear how she was treated differently. These are mere speculations and vague assertions. The Complainant identified her alleged abuser on the hearing day but not on the complaint form.

The Complainant was not dismissed for any discriminatory reason but because of her performance.

Summary of direct evidence and cross-examination of Mr Gashi, Operations Director

Mr Gashi outlined the background to the company. He said that the Respondent has three offices in Dublin, Cork and Limerick. Because of the service provided there is variety of nationalities in the office and in the interpreters’ cohort. The Respondent has a multicultural workforce.

Mr Gashi said that all employees receive a handbook which contains a grievance policy and a harassment policy. He said that the disciplinary procedure does not apply during the probationary period. The Complainant signed that she received the handbook. The Complainant had all necessary information as to how to raise a complaint.

Mr Gashi said that no employee can start working before they sign a contract, confidentiality agreement, and are Gardaí vetted.

Mr Gashi said that the Respondent pays its staff on 15th day of each month and the Complainant received her first salary payment on 15 September 2021.

Mr Gashi said that he is based in Dublin. If he got a call after hours sometimes, he would have rung the Complainant asking if she would take the job. She was always very obliging. He and the Complainant’s then manager were happy with the Complainant’s work and they offered her an admin role which she started on 2 March 2022.  Her contract was based on 3 days per week work as the Complainant was a student. She was supposed to be paid €2,000 monthly pro rata. The Respondent discovered that the Complainant was overpaid at some stage.

Mr Gashi said that there is an expectation that within a few weeks an employee should be able to do their job. The Complainant was given three month and then she was let go. The Respondent thought that she was a bit slow so she was given a chance but there was no improvement, the Complainant was not performing.

Mr Gashi said that the Respondent did not have a Polish manager at the relevant time. He said that a named female employee (no longer with the Respondents) was the Complainant’s manager. She was Irish.

Mr Gashi said that the events the Complainant described in her complaint form never happened, they had a great relationship. He was shocked when he received the complaint form. He said that there was never any informal or formal complaint. The Complainant could have gone to himself, her former manager or Ms Kiely. He said that there were never any comments regarding the Complainants’ race or religion, and these were not the reason why she was dismissed.

In cross-examination, it was put to Mr Gashi that there were some mistakes in the contract e.g., para 9 referred to para 1.2 but there was no para 1.2.  Para 10.1. states that procedures do not form part of the contract. It was further put to Mr Gashi that the Complainant did not receive a staff handbook. Mr Gashi stated that the Complainant signed confirmation that she did.

Mr Gashi stated that he was happy with the Complainant’s work as an interpreter. He met with the Complainant for the first time in February / March 2022 in the Limerick office when she started her new admin role, he had never met her before. He said that sometimes he spoke to her on the phone regarding interpretation, she was obliging.  Three other staff members did double jobbing, worked in the office and did some interpretation.

Mr Gashi said that the Respondent gives 2 weeks – 1 month to get up to speed. The Complainant was given three months, she was given the time and training required. She was very slow and unable to multitask in a fast-paced environment.

Mr Gashi said that in the first six months an employee receives as much help as possible, but he was not sure if there was a formal appraisal in the probationary period. Mr Gashi said that they don’t have to give a reason for dismissal during probation.

Mr Gashi was asked if he was ever annoyed with the Complainant because of her performance, being slow. Mr Gashi said that he did not interact with the Complainant, their interaction was a “hello” in the office. Mr Gashi was asked if he was annoyed over the WRC complaint. He said that he was shocked, not annoyed.

Mr Gashi said that the Complainant applied for a job after the Respondent advertised it. The then Office Manager employed her. She needed her GNIB details, passport etc. Nationality of an applicant is known at the recruitment stage. It was put to Mr Gashi that the Performance Appraisal and Targets paragraph in the Complainant’s contract does not say that it is not applicable during probation.

In re-examination, Mr Gashi confirmed that the Complainant’s new contract was in force at the time of dismissal. The contract provided that disciplinary procedure did not apply during probation.

Summary of direct evidence and cross-examination of Ms Kiely, Office Manager

Ms Kiely said that the work in the office is fast paced, it requires multitasking, staff need to be confident in what they are doing. The atmosphere in the office is friendly, they get on well, more experienced staff help less experienced. Ms Kiely said that the Complainant was slow.

Ms Kiely said that she was in the office Monday to Friday from 9am to 5pm and she never witnessed Mr Gashi shouting. She said that it is a small office and somebody would have noticed if he was shouting.

Ms Kiely denied that she met with the Complainant and told her to stand up for herself. She said that it would be the then Office Manager’s job to deal with it.

In cross-examination, it was put to Ms Kiely that the Complainant said that they had met outside, the Complainant cried and Ms Kiely told her to be strong. Ms Kiely could not remember the Complainant crying.

The Complainant referred her claim to the Director General of the WRC on 20 October 2022 alleging that she was discriminated against by the Respondent by reason of her religion and/or her race, and  that she was dismissed for discriminatory reasons. The most recent date of discrimination was stated as 18 May 2022. The Respondent rejects the complaints.

In reaching my decision, I have considered all the submissions and evidence both written and oral presented to me.

Discrimination

Section 6(1) of the Employment Equality Acts provides that discrimination shall be taken to occur 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) …..”. 

Section 6(2)(h) of the Acts defines the discriminatory ground of race as follows – (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”).

Section 6(2)(2)(e) defines the discriminatory ground of religion as (e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “the religion ground”),

8. Discrimination by employers etc.

(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(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.

Burden of proof

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.  It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her.  If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. 

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v Valpeters EDA0917where it held that Section 85A:

"…. provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In Cork City Council v McCarthy EDA0821, the Labour Court stated as follows about the burden of proof:

“The type or range of facts which may be relied upon by a complainant can 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 order to shift the burden of proof to the Respondent, the Complainant must not only establish the primary facts being relied upon but must also establish that those facts are of sufficient significance to raise an inference of discrimination.

In Margetts v Graham Anthony & Company Limited EDA038, the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows:

“The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”

Comparator

Section 28 of the Acts in relevant parts provides that:

“28. The comparators

(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

(d) in relation to the religion ground, C and D have different religious beliefs or C has a religious belief and D does not, or vice versa;

(g) in relation to the ground of race, C and D differ as to race, colour, nationality or ethnic or national origins or any combination of those factors;”

Time limit

Section 77 provides as follows:

”(5)(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant's notice.

(6A) For the purposes of this section—

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operated over a period, throughout the period,

(b) a deliberate omission by a person to do something occurs when a person decides not to do it, and

(c) a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either—

(i) does an act inconsistent with doing it, or

(ii) the period expires during which the respondent might reasonably have been expected to do it.’

The time limits which govern the referral of complaints under the legislation are provided for in Section 77 of the Acts (as set out above). The effect of these provisions is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the WRC unless the discrimination in issue is part of a continuum of events.

The Complainant referred the within complaint to the Director General of the WRC on 20 October 2022. Therefore, the cognisable period  for the purpose of the complaint in accordance with the time limits provided for in Section 77(5) of the Acts is the six-month period prior to the referral of the complaint, namely from 21 April 2022 to 20 October 2022.

The issue for consideration by me is whether or not the Complainant as an Algerian national of Muslim faith was subjected to discriminatory treatment on the grounds of race and/or religion and whether she was dismissed for discriminatory reasons.

To determine whether the Complainant has established a prima facie case a three-tier test is employed: (1) the Complainant must establish that she is covered by the relevant discriminatory ground; (2) she must establish that the specific treatment alleged has actually occurred; and (3) it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

As highlighted in the Valpeters decision: “the Complainant must first establish facts from which discrimination may be inferred” and that such facts must “be of sufficient significance to raise a presumption of discrimination.”

Crucially, it also highlights that these “must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

I find the Complainant’s evidence unreliable and unpersuasive for the following reasons. I note that in her complaint form, the Complainant described two specific events, one that allegedly took place on 15 or 16 May 2022 at approximately 11am and another one that allegedly took place at approximately 4.20pm on 18 May 2022. The Complainant was very specific as to the details of the events in question. She stated in her form that she was traumatised and still had flashbacks of the incidents. However, at the adjudication hearing in her sworn evidence, the Complainant, despite being prompted a number of times by her own solicitor was unable to recall these events. The Adjudication Officer clarified to the Complainant that she had made references to two specific events in her compliant form, and gave her another opportunity to refresh her memory. The Complainant could not recall the alleged incidents. Instead, she gave vague answers that the manager was “all the time” shouting at her and that she remembered that he said “f…..g Muslim” but she could not recall when he said that.

The Complainant further stated in her complaint form that she was three minutes late and was treated “differently than the others”. It was not clear who are “the others” or how they were treated.

The Complainant does not rely on a comparator in support of her claim which creates a hole in the evidence that the Complainant is required to adduce. I note that, in his closing remarks the Complainant’s representative stated that the Complainant “was treated less favourably than other employees such as Ms Kiely”. However, using a witness’ name, out of context in closing remarks, in my view, is not sufficient to rely on this witness as a comparator for the purposes of the Acts.

I note that, in her complaint form, the Complainant stated that “the other staff were French and Irish who are white and non-Muslim”. However, at adjudication hearing the Complainant confirmed that there was at least one other staff member who was Muslim.

The Complainant did not proffer any evidence to show that the treatment she was subjected to was less favourable than the treatment afforded to a comparator, actual or hypothetical, who does not have the characteristic relied upon.

She has not evidenced that– because she is Algerian and/or a Muslim – she was treated adversely compared with the way her colleagues were treated.

The Complainant is making general, sweeping allegations that she was treated less favourably because of her race and/or religion, without any specific evidence to support these assertions. This does not meet the very first requirement for a complaint of discrimination to be established, that a complainant must show that a comparator of a different race and/or religion was treated more favourably.

The obligation rests with the Complainant to provide credible evidence to raise the allegations to meet the standard of “established facts.” As set out in Melbury Developments Ltd. V Valpeters cited above “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” In the instant case, the Complainant made a number of allegations relating to the behaviour of the Respondent. However, I am not satisfied that I have been presented with evidence from which I could reasonably conclude that the Complainant was discriminated against by the Respondent on the ground of race and/ or religion.

I declare this complaint to be not well founded. The Complainant has failed to establish a prima facie case of discrimination on the grounds of race and/or religion and/or that she was dismissed for discriminatory reasons.

Discrimination – race – religion-