ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00054241

Parties:

Complaints:

Date of Adjudication Hearing:  28/01/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015and/or Section 79 of the Employment Equality Acts, 1998 - 2015, and/or Section 25 of the Equal Status Act, 2000,following the referral of the complaints to me by the Director General, I inquired into the complaints  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.

Background:

The Complainant contends that he was discriminated against by the Respondent on the ground of age.

Summary of Complainant’s Case:

The Complainant was laid off for 2 periods in early 2024.  The first was from 9 January to 19 February 2024 and the second was from 12 April 2024 and he has had no work from the Respondent since that date.  He stated that he was promised 12 months work in site A when he returned to work on 19 February 2024 but then he was sent to site I.   He was then laid off from that site on 12 April 2024.  He contends that he was the only employee laid off and as he was the oldest on site, he submits that the Respondent discriminated against him on age grounds.  A few weeks after he was laid off, he was told that the Respondent was hiring, and he was given a screenshot of an Advertising board showing the Respondent was seeking Plumbers and Apprentices for Local Projects.  He believes he could have been sent to other sites, and that younger employees were sent to sites.  He was very dissatisfied at the lack of communication from the employer and believed he was treated in an unfair and discriminatory manner.  

Summary of Respondent’s Case:

It is respondents’ position that the claims are entirely without merit, the claimant was the subject of a valid Lay-off situation where the respondent was forced to place numerous employees on lay off. Further the respondent does admit that the manner in which the claimant was treated while on lay off is not an ideal situation as it is our assertion that the claimant was not brought back to work in good time, however it is the position of the respondent that the mistake had nothing to do with the age of claimant, but rather a simple error on the part of respondent.

The respondent operates Architectural Steel & Mechanical Services was established in 2006, it is an Irish owned Company based in the South of the Country and operates on a national scale from small to medium sized projects serving a multitude of Commercial, Industrial & Institutional Clients.

The claimant began his employment with company on or about the 25th March 2022 and was employed as a plumber on a 39 hour week and paid in accordance with industry rates which at the time the claim was lodged were €27.75 per hour.

The claimant was employed on a number of different sites however in or around the 21st January 2024 the claimant was contacted by the respondent and placed on a temporary lay-off due to a downturn in work. This type of situation is not uncommon for the respondent and the industry in which there is often a period of time between the closing of one construction project and the starting of another. It is fair to say that it is the nature of the industry that at times work can be sporadic.

The respondent has compiled a list of employees who have been employed and laid off since January 2024.

As it can be seen on the list compiled by the respondent at the time the claimant was placed on lay-off in January he was the sole plumber placed on lay-off and subsequently the following week another plumber was placed on lay-off. Approximately 3 weeks later the claimant was returned to work with the respondent.  It is argued had the Respondent discriminated against the Complainant then why would they bring him back?

The claimant was contacted by the respondent in early March of 2024, and was taken off of temporary lay-off and the claimant worked between the 3rd March 2024 and was again placed on lay-off on the 14th April 2024. The respondent submits that during the week the claimant was placed on lay-off 6 other employees were also placed on a temporary lay-off due to a downturn in the availability of work.

Following the period of lay-off which began on or about the 14th April in which the claimant and 3 other plumbers were laid off in the following 6 weeks, and one more in the three weeks subsequent. During the intervening period since the claimant was placed on Layoff the respondent has had to place a total of 8 Plumbers on Layoff and a number of apprentices and others, and in the same period only 3 have been brought back to work.

The claimant makes a complaint to the WRC on or about 2nd September 2024.

Equal Status Act, 2000

It is the position of the respondent that the claim under the Equal Status Act should not be considered for Adjudication. It is submitted that the Equal Status Act is the incorrect legislation as the act protects against discrimination, and the discrimination for which he is claiming as outlined in both the Workplace Relations Complaint Form the Equal status notification indicate that the claim relates to the claimant as an employee and not as a member of the public.

It is clear that the Equal Status Act is not the Correct Legislation The claimant clearly outlines that the claim relates to the claimant in his capacity as an employee and not as a member of the public. It is noted that the claim is also lodged under the employment Equality Act and therefore there is no issue regarding the correction of the form or the claim.

Employment Equality Act, 1998

It is the position of the claimant on the WRC compliant form that they have been discriminated against on the grounds of age. From the claimants Workplace Relations Complaint Form the claimant is alleging that he was placed on a temporary lay-off while other younger workers have not been placed on a temporary layoff.

It is the respondent’s position that the claimant has not been discriminated against on the grounds of age or in any manner. Further it is the position of the respondent that the sole reason for the layoff is/was a downturn in business.

Burden of Proof

It is the practice and the law in relation to equality cases before ether WRC and Labour Cour that the claimant must first establish a “prima facie” case before evidential burden of proof shifts to the employer, that is to say the claimant must set out facts from which it can be inferred that the principle of equal treatment does not apply.

As set out by the Labour Court in Southern Health Board v Mitchell [2001] E.L.R. 201 the Complainant to establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. The fact of the matter in the present case is simply that there are no facts that the claimant has given that would create a presumption that discrimination of any type occurred.  

Section 85A (1) of the Acts provides as follows:

“(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”.  

In order to demonstrate that the Claimant has received less favourable treatment and that the less favourable treatment arose from his age, gender, civil status, religion and/or race, the Claimant must first establish a prima facie case of discrimination. Prima facie evidence has been held in the Labour Court in the Rotunda Hospital v Gleeson [DDE003/2000] to be: “Evidence which in the absence of any contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.”  

The Respondent notes that this requires that a claimant has to not only establish the primary facts upon which he or she will seek to rely but also that those facts are of sufficient significance to raise an inference of discrimination.

In Cork City Council v McCarthy EDA21/2008, the Labour Court recommended that:

“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 of 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 in 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 the Labour Court warned that

“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”. Further 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.”

In the present matter it is clear that the claimant cannot show beyond mere speculation or his own unfounded assertions that any discrimination has occurred. The respondent has over the last number of years placed numerous employees on lay-off returned number employees including the claimant.

Additionally, the claimant is alleging that he was the only employee placed on Layoff, and this is what he claims constitutes the discriminatory treatment. The claimant has stated on his WRC complaint for that he was the only individual who has been placed on Lay-off, yet the testimony of the respondent is that numerous individuals of varying ages have been placed on temporary lay-off.

It is the position of the respondent that the claimant has not discharged the burden of proof and has ignored the fact that a number of employees have been placed on layoff and that is the transient nature of construction industry and employment therein.

The respondent submits that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to the respondent to rebut the inference of discrimination raised. The respondent submits that the Complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

Conclusion

The respondent submits that the claim before the WRC is without merit and should not be upheld. The Claimant by his own admission on a previous occasion was placed on layoff and then was brought back to work. The claimant has not received any less favourable treatment.

The less favourable treatment in which the claimant has alleged he has received as is outlined in his WRC complaint for is “all others on site are younger and no one else in (the)company (has been) put on temporary layoff.” The allegation of less favourable treatment is based on the incorrect and mistaken view of the claimant that “no one” else has received similar treatment.

The evidence of the respondent will be as outlined that the respondent regularly and consistently in the last year has had to place qualified plumbers, apprentices of all years and numerous others on a lay off and when work becomes available, they will of course be in a position to return the claimant to full time employment.

The respondent submitted lists of employee numbers, ages and categories that were recruited and laid off in the period 14 January 2024 to 20 October 2024.  The list included apprentices, plumbers, laggers and general operatives.

Findings and Conclusions:

CA-00065783-001           Employment Equality Act 1998

The applicable Law

Discrimination is defined as:

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,

…

(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are

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

In this instant case, the Complainant contends that the Respondent discriminated against him on the age ground.  He argues that this discrimination occurred when he was laid off, particularly on 12 April 2024 when he contends he was (a) the only employee laid off and (b) as the oldest this was a discriminatory act.  He also contends that other younger employees were sent to sites and he was not and this constitutes discrimination.

From an examination of the record produced by the Respondent, he was not the only employee laid off in the week ending 12 April 2024.  I note the Respondent’s position that the nature of contract work and the movements in and out of site depend on the work.  I note the evidence of the work coming to an end on the particular site the Complainant was on in April / May 2024.  The lack of communication from the Respondent and the failure to offer him work is a matter of concern and it appears from the Complainant’s point the Respondent did not treat him in courteous manner and has not returned him to work for whatever reason.  However, the contention that this amounted to discrimination must be considered in this investigation of his complaint.   The first point to consider  is whether the Complainant can establish facts from which it might be inferred that he was discriminated against on the grounds of age.  That is the prima facie case and burden of proof referred to in the Respondent’s submission.

Burden of proof

Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:

“(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 her or her, it is for the Respondent to prove the contrary.”

Put simply, the onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred.  If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur.

The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found that the Complainant 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 was no infringement of the principle of equal treatment”.

In Elephant Haulage Ltd v Garbacevs the Labour Court stressed that facts based on credible evidence were necessary to prove a prima facie case of discrimination and 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 Court observed that the language of Section 85A admitted of no exceptions to the evidential rule laid down.

The formulation of the test by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 was described by the Court in HSE North Eastern Area v Sheridan EDA0820 involving a three step process of analysis:

First, the Complainant must prove the primary facts upon which he or she relies in alleging discrimination.

Second, the Court or Tribunal must evaluate these facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination.

Third, if the Complainant fails at stage 1 or 2, he or she cannot succeed.  However, if the Complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the onus shifts to the Respondent to prove, on the balance of probabilities, that there is no discrimination.

In this instant case, the evidence shows:

The Complainant felt strongly that as he was the only one laid off at the time on 12th April 2024 that the Respondent discriminated against him on the ground of age.          

The Complainant was told by friends that the Respondent was hiring and he was aggrieved that he was not returned to work.  He was trying to make contact with the Respondent and find out why he was not brought back.

The Respondent provided records to show that 2 Plumbers were laid off on 14 April 2024.

The Respondent stated that since the Complainant was laid off, 8 Plumbers were laid off and 3 brought back.  It was submitted that the Respondent intends to implement a fairer system however, no ground of age discrimination is a feature of the current system of lay off and return.

I note the Respondent’s intention to improve their system and it is a matter of some concern that apparently the Complainant still was not contacted for work up to the time of the hearing.   However, from the evidence that the Complainant was not the only worker laid off and that others of varying ages were laid off, I cannot deduce he was discriminated against on age grounds.  The Complainant has not established a prima facie case and the complaint is not well founded.

I have decided that the complaint is not well founded and the Respondent did not discriminate against the Complainant on age grounds.

CA-00065783-002           Equal Status Act 2000

The Equal Status Act 2000 prohibits discrimination in the provision of goods and services, accommodation and education.  The Complainant in this case is an employee and his complaint is misconceived under this Act.  I find the complaint to be not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00065783-001           Employment Equality Act 1998

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

For the reasons outlined I have decided that the complaint is not well founded.

CA-00065783-002           Equal Status Act 2000

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

For the reasons outlined, I have decided that the complaint is misconceived and not well founded.

Dated:   14.03/2025.

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: