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Discrimination and Equality in the WRC

“I hate prejudice, discrimination, and snobbishness of any kind – it always reflects on the person judging and not the person being judged.  Everyone should be treated equally.”

Gordon Brown

Discrimination and Equality Claims in the Workplace Relations Commission (WRC)

A person who discriminates unlawfully will rarely do so overtly and will not leave evidence of the discrimination within the claimant’s power of procurement. Hence, the normal rules of evidence must be adapted in such cases so as to avoid the protection of anti-discrimination laws being rendered nugatory by obliging claimants to prove something which is beyond their reach and which may only be in the respondent’s capacity of proof.

Discrimination is defined as the treatment of a person in a less favourable way than another person is, has been or would be treated in a comparable situation on any of the nine grounds which exists, existed, may exist in the future, or is imputed to the person concerned. The instruction to discriminate is also prohibited.

The Acts make unlawful discrimination on the grounds of;

  1. Gender;
  2. Marital status;
  3. Family status;
  4. Sexual orientation;
  5. Religion;
  6. Age;
  7. Disability;
  8. Race; or
  9. Membership of the traveller community.

Claims brought under the Acts include:

  • direct discrimination;
  • indirect discrimination;
  • harassment
  • victimisation and /or
  • equal pay;

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Direct Discrimination

Direct discrimination arises where the less favourable treatment is based on a criterion which is necessarily linked to a characteristic indissociable from the discriminatory ground.  Make Sense?…not really!…In a nutshell, in order to establish direct discrimination, it is necessary to prove that, but for the fact that the Claimant falls within one of the discriminatory grounds, he or she would have been treated differently.

As such, it is necessary to identify an actual or hypothetical comparator, in a comparable situation who is, has, or would be treated differently, that is someone who was doing the same job in similar circumstances but who was being treated differently.  The Claimant must discharge the burden of proof by showing that the difference in treatment is due to discrimination on one of the discriminatory grounds.

Once the Claimant has made a prima facie case the burden of proof shifts to the Respondent.

In Dublin Corporation v. Gibney’s EE5/1986, a prima facie case was defined as: “evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.”

The burden of proof was also summarised in Minaguchi v. Wineport Lakeshore Restaurant:

“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:

  • that she is covered by the relevant discriminatory ground(s)
  • that she has been subjected to specific treatment and
  • 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 treated.”

The connection between the discriminatory ground, and the alleged discriminatory acts is not to be established by way of motive or intention, but rather from objective facts that infer discrimination.  This requirement is well captured in the decision in A Technology Company v. A Worker EDA0714: “A person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable than a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discrimination motive, in the absence of independent corroboration, must be approached with caution.”

The Adjudicator in case considering discrimination must consider;

  1. Was the Claimant discriminated against in terms of conditions of employment on the ground of his disability pursuant to S. 8(1)(b) of the Acts?
  2. Was the Claimant discriminatorily dismissed pursuant to S. 8(6)(c) of the Acts, on the ground of disability?
  3. Did his treatment prior to his dismissal and his subsequent dismissal amount to victimisation pursuant to section 74 of the Acts?
  4. Did the Respondent fail in its duty to reasonably accommodate the Claimant’s disability?

It is well accepted that there is a broad range of circumstances in which direct discrimination can arise in the conditions of one’s employment.

In An Employee v. A Broadcasting Company [2012] ELR 88 direct discrimination on the ground of disability was found to have occurred in relation to the Claimant’s assignment of roles within the Respondent Company.

In An Employee (Mr O v. An Employer (No. 2) [2005] ELR 132 the Labour Court found that the Employer had failed to treat the Employee in a sympathetic manner upon his return to work from a psychiatric illness and was instead intent on making his working life difficult.  The Labour Court upheld the Claimant’s claim for constructive dismissal, despite the Claimant never having raised the Respondent’s grievance procedure.

Where there are actual comparators, the real as opposed to a hypothetical comparator is required.  A Court cannot and should not find in favour of the Claimant on the basis of mere speculation.

Insofar as a claim relates to pay the High Court has decided in Brides V Minister for Agriculture 1998 that a real as opposed to a hypothetical comparator is required.

Scope of Prohibited Discrimination

The scope of prohibited discrimination is widely drawn and encompasses every stage of employment.   Matters other than remuneration may include, inter alia, conditions of employment.

An employer can be taken to discriminate against an employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer that person the same terms of employment, the same working conditions and the and the same treatment in relation to overtime, shift work, short-time, transfers, layoffs, redundancies, dismissals and disciplinary measures as those offered to someone else in materially similar circumstances.

The connection between the discriminatory ground, and the alleged discriminatory acts is not to be established by way of motive or intention, but rather from objective facts that infer discrimination.  This requirement is well captured in the following dicta from the decision in A Technology Company v. A Worker EDA0714: “A person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable than a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination and mere denials of a discrimination motive, in the absence of independent corroboration, must be approached with caution.”

Prima Facie Grounds of Discrimination:

The Acts provide that where in any proceedings facts are established by or on behalf of the Claimant from which it may be presumed that there has been discrimination it is for the Respondent to prove the contrary.

The Claimant therefore must, in the first instance, establish facts from which can be presumed that he was subjected to discriminatory treatment on the grounds of one of the nine characteristics above (called proving a prima facie case) and it is only when he was discharged that obligation to the satisfaction of the adjudicator or tribunal that the burden shifts to the Respondent to rebut the inference of discrimination raised.

Section 85A of the Acts provides–

  1. “(1) Where in any proceedings facts are established by or on behalf of a Appellant 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.
  2. (5) In this section ‘discrimination’ includes –
    1. indirect discrimination,
    2. victimisation,
  • harassment or sexual harassment, ….”

The test normally used to determine when and in what circumstances the burden of proof should the respondent is formulated in the case of Mitchell Vs Southern Health Board 2001 ELR 201.

This test provides that the Claimant must first prove the primary facts upon which they rely in asserting discrimination.  If those facts are proved and they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the burden of proving the absence of discrimination shifts to the respondent.

So, the Claimant must first establish facts from which discrimination may be inferred.  They must be established as facts on credible evidence.  Mere speculation, assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.

Where there are actual comparators, the real as opposed to a hypothetical comparator is required.  A Court cannot and should not find in favour of the Claimant on the basis of mere speculation.  “In relation to the comparator, it is not sufficient, in my view, to ignore actual comparator workers and assert that a hypothetical Irish employee would not have been treated in the same manner by the respondent.”

In Toker developments Ltd V Edgars Grods EDA10 the mere fact of a difference in status (in this case race) and the difference in treatment is in itself insufficient to shift the probative burden of proof.  Therefore there is a requirement to demonstrate actual discrimination “it would clearly be impermissible for the court to reach conclusions of facts based upon mere supposition or speculation”.  This was also confirmed in the cases of J. Ryan Haulage V Kostas Avizinis and Madarassy V Nomura International plc 2007 IRLR 246. 

In order to succeed in this contention, a Claimant must be able to produce some significant evidence and not mere supposition to allow the court to draw an inference that persons of different race or nationality were or would be treated more favourably.

In the Toker case the court held; “it is settled law that in cases of equal treatment a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such comparator would have been treated more favourably in the circumstances of the particular case.”  The mere fact of a different status in this case race and a difference in treatment is in itself insufficient to shift the probative burden.

In Good Concrete V Oksana Shaskova (determination EDA 0919) it was accepted that the mere coincidence of the Claimant’s nationality and his or her dismissal is sufficient to shift the probative burden from the Claimant to the Respondent.

In Melbury Developments V Valpeters it was submitted that the Claimant was treated badly by the respondent and the court was invited to infer that he was so treated because of his race.  Such an inference could only be drawn with evidence of some weight from which could be concluded that persons of a different race or nationality were or would be treated more favourably.  The Court also confirmed that an approach requiring the respondent to prove that others were treated similarly would amount to placing the entire probative burden on the spot.

Furthermore, in the above case, the Court confirmed as follows; “In relation to the comparator, it is not sufficient, in my view, to ignore actual comparator workers and assert that a hypothetical Irish employee would not have been treated in the same manner by the respondent.”

A Tribunal cannot and should not find in favour of the Claimant on the basis of mere speculation.

In order to succeed in this contention, the Claimant must be able to produce some significant evidence and not mere supposition to allow the court to draw an inference that persons of different race or nationality were or would be treated more favourably.