Complainant

Respondent

 Anonymised Parties

Sales Support

Stafford Lynch

Representatives

  Self

Naledi Bisiwe IBEC

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-00055590-001

17/03/2023

The Complainant resigned from his position about on or about the 3rd of January 2023 after commencing on or about the 10th of July 2022. He worked as a sales merchandiser.

In his written submission dated the 11th of January 2024 he stated that he was bringing the complaint based on an allegation that he was bullied and harassed by a Sales Representative who directed and assessed his work.

The Respondent denies the allegations now being made against them and argued that no prima facie case of discrimination had been made out by the Complainant.

The Complainant has not presented any medical evidence to support his claim of disability.

It would appear that the ground was chosen with reference to an Instagram message that was sent by a work colleague to him on or about the 9th of January 2023.

The Complainant resigned on or about the 3rd of January 2023.

Under oath the Complainant stated that he never disclosed to his employer that he had a disability.

The social media message sent by a work colleague did in fact mention a specific issue that could be classed as a disability under the Act.

The work colleague gave evidence about that social media message.

It is clear that the information contained in that message arose after the Complainant left the company.

As the Complainant never disclosed any disability to his employer and the social media message was informed by hearsay after the Complainant left his employment, it must follow that the employer could not have been on notice of this disability or a request to accommodate him arising from that disability. It is also the case that no medical evidence has been presented to this tribunal to support the Complainant’s position that he has a disability. It is also the case that the Complainant under oath stated that he never informed his employer of his disability. On these facts I must find that no prima facie case of discrimination has been established.

I find that the Complainant was not discriminated against on the ground of disability and dismiss the complaint.

The Complainant also alleged that he was being victimised by a work colleague.

I note in Employment Equality Law 2ND edition [ Bolger, Bruton, Kimber] where victimisation is referenced as affording a wide remit:

Victimisation

2-81

Provision is made in the Directives outlawing victimisation.156 For example, art.24 of the Recast Directive provides as follows:

“Member States shall introduce into their national legal systems such measures as are necessary to protect employees, including those who are employees’ representatives provided for by natural laws and/or practices, against dismissal to other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.”

2-82

The definition is significantly wider than the previous victimisation provisions in the Equal Treatment Directive which only outlawed  victimisation in the form of dismissal. Similarly widely drafted provisions outlawing adverse treatment or adverse consequences as a reaction to a complaint of discrimination are included in the Race Directive157 and the Framework Directive.158 Restrictive protection from victimisation was found to be inconsistent with art.24 in the first victimisation case to come before the CJEU in 2019. Hakelracht v WTG Retail BVBA159 involved a manager who had been dismissed after he told his employer that its refusal to employ an applicant for a job because she was pregnant would be unlawful. The national legislation limited protection from victimisation to an employee who had intervened as a witness in an investigation of the assisted employee’s complaint and even then, only where the employee’s witness statement satisfied certain requirements. The CJEU gave a far broader interpretation to art.24 and held that protection from victimisation also applies to employees who have supported the person who had been discriminated against, even where that support was informal

Section 77 of the Act defines victimisation as:

victimisation” shall be construed in accordance with subsection (2).

(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.

And discrimination for the purposes of the Act is defined at section 6:

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—

(a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),

(b) that they are of different  (in this Act referred to as “the civil status ground”,

(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),

(d) that they are of different sexual orientation (in this Act referred to as “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 (in this Act referred to as “the religion ground”),

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

(h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”),

(i) that one is a member of the Traveller community and the other is not (in this Act referred to as “the Traveller community ground”.

The claim of victimisation must be linked to a ground provided for in the Act, and that has not been made out in this case. The employer was under no notice of the disability.

The factual matrix of this case relates to a belief by the Complainant that he was being treated unfairly and that his workload was excessive. In his language this amounted to bullying.

It was explained, since the Complainant is a lay litigant that the Act which he now relies on does not provide for a stand alone action for alleged bullying at work other than where it is linked to discrimination as defined under the Act. As not such ground in fact has been identified, a claim for victimisation under the Employment Equality Act 1998 as amended cannot be sustained. I find that the Complainant was not victimised as defined under the Act.

As the Complainant never disclosed any disability to his employer and the social media message was informed by hearsay after the Complainant left his employment, it must follow that the employer could not have been on notice of this disability or a request to accommodate him arising from that disability. On these facts I must find that no prima facie case of discrimination has been established.

I find that the Complainant was not discriminated against on the ground of disability and dismiss the complaint.

The claim of victimisation must be linked to a ground provided for in the Act, and that has not been made out in this case. The employer was under no notice of the disability.

The factual matrix of this case relates to a belief by the Complainant that he was being treated unfairly and that his workload was excessive. In his language this amounted to bullying.

It was explained, since the Complainant is a lay litigant, that the Act which he now relies on, does not provide for a stand-alone action for alleged bullying at work other than where it is linked to discrimination as defined under the Act. As not such ground in fact has been identified, a claim for victimisation under the Employment Equality Act 1998 as amended cannot be sustained. I find that the Complainant was not victimised as defined under the Act.

As no prima facie case has been made out to support the Complainant’s claims, I must determine that he was not discriminated against and dismiss his complaints.

Victimisation-Equality-Discrimination