Background
The case of A Job Applicant v A Public Body (ADJ00049321) examines the burden of proof in discrimination claims, particularly when discrimination is being claimed at the interview stage.
A Job Applicant (the Complainant) brought a complaint under Section 77 of the Employment Equality Act, 1998 against A Public Body (the Respondent) to the Workplace Relations Commission (WRC), alleging that he was not offered a role for which he was eminently qualified, due his having a number of certain characteristics.
The Complainant alleged that because he was married, male with four children (one of whom had special needs) heterosexual, Roman Catholic, and forty-eight, he was not given a role as the head of legal services in the Respondent organisation. The Complainant argued that he was an experienced solicitor and journalist and that those selected for the roles advertised were less experienced and less qualified than he was.
He further noted that, while he was of Irish nationality, the fact that he previously lived in the United Kingdom with his wife who was a British national, was also a contributing factor.
The Respondent argued that there was a transparent scoring system for all roles using pre-defined criteria and that, in any event, they were unaware of his age, religion, sex, sexual orientation, race, nationality, marital status, parental status and the number of children the Applicant had.
Legislation and Case Law
In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the above section is to be interpreted.:
“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant 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 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.”
When considering the primary facts adduced by the Complainant the Adjudication Officer noted that they must take into consideration the Respondent’s contrary evidence, when determining whether the burden of proof should shift to the Respondent. In the Labour Court case of Dyflin Publications Limited v Spasic EDA0823, it was stated that:-
“…. the Court should consider the primary facts which are relied upon by the complainant in their proper context. It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant”.
In Graham Anthony & Company Limited v Mary Margetts EDA 038 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 when it stated:
“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 occurred.”
Decision
Ultimately, the Adjudication Officer decided that the Complainant had not produced any evidence that could lead to a conclusion that he was discriminated against on any of the grounds cited.
The Adjudication Officer determined that:
“On the face of it the Complainant seems to suggest, that because he did not have access to information which the Respondent did not collect for the position of HEO, namely the protected grounds of the other candidates, then he could assume that he was discriminated on all the grounds cited, and that was the reason he did not receive the position. I do not accept this as a plausible argument… I am satisfied that the Complainant position was that of mere speculation and assertions . Simply put, without evidence, speculative claims cannot serve as the foundation for inferring discrimination, and I therefore find that the Complainant has not established a prima facie case of discrimination under section 85A of the Acts.”
Takeaway
The takeaway for employees considering bringing a complaint under Section 77 of the Employment Equality Act, 1998 is to determine what evidence they can use, beyond mere assumption, to substantiate a complaint of discrimination by their employer.
For employers, it will be necessary to demonstrate that there are objective reasons for the behaviour complained of by an employee when defending such a claim.
