Complainant

Respondent

Parties

Brenda  Cummins

Moore Cleaning Services Limited

Representatives

  Self

 Mr Greg Moore

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-00055442-003

08/03/2023

The Complainant was employed as a cleaning operative (DOC Team) with the Respondent from 19/10/2020 until 05/04/2023.  The Complainant resigned her position due to the difficulties she was experiencing from her supervisor and other colleagues.  She alleges that she was discriminated against due to the bullying and harassment that she experienced.  The Respondent denies that any discrimination took place.

At the outset of the hearing the Complainant was asked to confirm which of the grounds of discrimination she was alleging.  The Complainant stated that she did not think that any of the grounds applied to her but that her case was that she was forced to resign due to the issues which she experienced.  The Complainant was advised that these were the subject of a separate complaint.

The Complainant confirmed that she was unable to scope out the grounds on which she would rely to pursue her complaint of discrimination.

The Complainant believes that she was subjected to bullying and harassment which arose from a personal issue and then found its way into the workplace.   The Complainant raised the issues with the Respondent and was unhappy with the response.  She believes that this treatment was discriminatory in nature but at the hearing she confirmed that she was unable to specify which of the grounds she would rely on.

The Respondent submits that the Complainant did not provide sufficient information to ground a complaint under the Employment Equality Act and that the issues she raised were the subject of a separate complaint. 

The Complainant submitted a complaint to the Workplace Relations Commission on 08/03/2023 that she was discriminated against by the Respondent on the basis of the treatment she received. The Respondent submits that the complaint is not well founded as no discrimination took place and the Complainant did not provide sufficient details to ground a complaint under the Act.

Section 6 of the Employment Equality Act, 1998, states:

“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 civil status (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”)”.

This complaint is made pursuant to the Employment Equality Acts on the basis that the Complainant was discriminated by the Respondent because of the difficulties she experienced. 

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) 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 effect of s.85A above is to place the burden of proof in the first instance on a Complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the responsibility was on the Complainant to show that, based on the primary facts, she has been discriminated against because of one or more of the grounds outlined in the Act.

The explanation provided by the Labour Court in its decision on Arturs Valpeters v Melbury Developments [2010] 21, ELR 64, which addresses the onerous nature of the burden of proof is also helpful:

“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 speculations 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 proof fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

In deciding whether the Complainant has discharged the burden of proof as set out in section 85A of the Act above, I must consider the totality of her evidence given at the hearing. In the first instance, I note that she was unable to link the alleged treatment to any of the grounds specified in the Act.

Bolger, Bruton, Kimber; Employment Equality Law 2nd Ed. 2022 at para 2-207 commenting on Southern Health Board v Mitchell (2001) E.L.R. 201 noted:

“This test requires that facts relied upon by a Complainant must be proved by them to the satisfaction of the Tribunal or Court at the level of balance of probabilities and if proven, must be of sufficient significance as to raise an inference of discrimination. In the case before it, the Labour Court found, on the facts of the case, that the Complainant could not demonstrate superior qualifications and experience than the successful appointee and that she therefore failed to discharge the burden of proof that rested on her”.

In conclusion I find that as the Complainant has failed to establish which of the grounds, she wishes to pursue her complaint she has consequently failed establish a prima facie case of discrimination for the purposes of this Act. I find that this complaint is not well founded.

I find that this complaint is not well founded, and the Respondent did not discriminate against the Complainant.

Grounds of discrimination.