Complainant

Respondent

Parties

Wayne  Kelly

CBRE GWS (Ireland ) Limited

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-represented

Mary Fay, B.L., instructed by  A&L Goodbody LLP

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-00054355-002

04/01/2023

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

CA-00054355-003

04/01/2023

The complainant undertook to give his evidence under affirmation. One witness for the respondent (A supervisor) undertook to given evidence under affirmation while the second witness for the respondent (a HR Business Partner) undertook to give evidence under affirmation.  The parties were afforded the opportunity to cross examine the witnesses.

The complainant outlined his disability to the hearing, the respondent did not challenge the existence of a disability, nor the notification process wherein it learned of the disability.  The adjudicator was satisfied the illness may amount to a disability in accordance with the Act, albeit it a hidden one.

The complainant submitted that he was discriminated against on the grounds of disability when he was not afforded equal pay to a named comparator.  He also submitted that he was discriminated against in relation to the allocation of the workload.

Complainants evidence:

The complainant notified the respondent of his disability in June 2021.  He stated that his employer doubled his workload in January 2022 in an attempt to constructively dismiss him when they assigned him to look after four buildings rather than the previous two.  He said that discrimination is the only rationale behind the increase in work.

The complainant stated that his named comparator received a 10% increase in his pay even though he was already on higher money than the complainant.  He stated that everybody was given different increases irrespective of whether they had a disability or not. 

The respondent did not avail of the opportunity to cross examine the complainant.

The respondent denied discriminating against the complainant.  In respect of the equal pay claim the respondent submitted that the difference in pay between the complainant and the named comparator resulted from an independent benchmarking process which awarded the complainant a 5% pay rise and the named comparator was awarded 10%.  The respondent submitted that the benchmark process was unrelated to the complainant’s disability.

As to the distribution of the workload, the respondent noted that workload is determined by the number of workload task ‘tickets’ dealt with by an employee rather than the number of buildings that they covered. It submitted that the complainant undertook a similar number of tasks to his named comparator.

As regards the difference in pay, the respondent submitted that the difference in pay dates back to the starting salary offered to employees. The respondent accepted that there can be differences in starting salary between employees at the same grade, but this is due to their respective experience and qualifications, and not due to any personal protected characteristic of the employee. It was submitted that the starting salary offered to the complainant (in 2019) and his chosen comparator cannot possibly have been influenced by the complainant having a disability disease, as he did not disclose his condition to the respondent until a much later date, by email dated 8 July 2021.

The respondent submitted that the complainant has failed to identify any facts of sufficient significance such as to give rise to an inference of discrimination as required by section 85A of the Employment Equality Acts in relation to either his rate of pay nor in relation to work allocation and has failed to discharge and demonstrate essential proofs of his claims including identify prima facie facts to link the issues complained of to the complainant's disability.

The only witness to give evidence from the respondent was the complainant’s supervisor.  He noted that he only became aware of the existence of the complainant’s disability in 2023 when he lodged a complaint to the WRC.  He stated that the complainant and his colleagues had roughly the same number of tickets as one another, despite the number of buildings each had to operate in.  He noted that he complainant consistently had the oldest tickets, i.e. his tasks were not being performed promptly.

Under cross examination the witness noted that there was no backfilling of vacancies and that accordingly there was a reassignment of buildings when the named comparator left employment.  He noted that the tickets were evenly assigned across the employees.

Section 85A(1) of the Employment Equality Act deals with the Burden of Proof that rests on a complainant and states as follows:

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 respondent submitted that Section 85A of the EEA, as amended, places the initial burden of proof on a complainant. He must not only establish the primary facts upon which he relies but also prove that those facts are of sufficient significance to raise an inference of discrimination.

It noted that the extent of the evidential burden which a complainant must discharge before a prima facie case of discrimination can be made out was considered by the Labour Court in Southern Health Board v Mitchell [2001] ELR 201

 "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."

The respondent also noted the Labour Court remarks in Melbury Developments Ltd v Valpeters [2010] 21 ELR 64 that facts:

"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." 

CA-00054355-002

Having regard to the complainant’s evidence, in relation to the difference in pay, I note that he stated that “everybody was given different increases irrespective of whether they had a disability or not”.  The complainant’s evidence was that the pay differences are not based on any ground contained in the Act.  On this basis I find that the complainant has not established facts from which it may be presumed that there has been discrimination in relation to him.

CA-00054355-003

Having regard to the distribution of the workload, the complainant stated that “discrimination is the only rationale behind the increase in work” without asserting any factual basis for this claim.  The redistribution of a workload where one colleague has left does not to my mind automatically give rise to an automatic rationale of discrimination, but rather falls within the realm of ‘mere speculation’ noted by the Labour Court in the Melbury Developments case cited by the respondent.  On the basis of the foregoing, I am not satisfied that the complainant has established facts from which it may be presumed that there has been discrimination in relation to him.

CA-00054355-002

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant has not established facts from which it may be presumed that there has been discrimination in relation to him.

CA-00054355-00

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant has not established facts from which it may be presumed that there has been discrimination in relation to him.

Employment Equality Act – Discrimination – Disability Ground – Burden of Proof – facts regarding presumption of discrimination not established