Guide to Equality Law in Ireland

Employment Equality Legislation

Section 85A of the Employment Equality Act provides as follows in relation to the burden of proof which a complainant must establish:

85A (1) Where in any proceeding’s 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the respondent to prove the contrary.

(4) In this section ‘discrimination’ includes —

(a) indirect discrimination

(b) victimisation

(c) harassment or sexual harassment

In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated in relation to Section 85A as follows:

"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. 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.”

Providing a Claim of Discrimination in the Workplace

It has been the well-established practice of the Workplace Relations Commission and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that they were treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.

The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, where the Court stated:

“The first requirement is 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 complainant 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 those 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 Labour Court also considered this matter in Determination No. EDA0821, Cork City Council v McCarthy as follows:

“At this initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary for her 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 be reasonably drawn from those facts.”

In another case, EDA0823, Dyflin Publications Limited v Spasic, the Labour Court also considered how a corresponding provision in U.K. legislation would be considered in that jurisdiction and quoted from a Court of Appeal decision, Madarassy v Nomura International plc, (2007) IRLR246.

“Section 63A(2) does not expressly or impliedly prevent the tribunal from hearing, accepting or drawing inferences from evidence adduced by the respondents disputing or rebutting the complainant’s evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they are not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which the comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.” 

The Labour Court then went on to state:

“What the passage quoted indicates is 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.”

Inferring Discrimination in the Workplace

In the case of Arturs Valpeters v Melbury Developments Ltd [2010] 21 E.L.R. 64 the Labour Court stated in respect of the provisions under employment equality legislation, requiring proof of discrimination, that:

“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 must 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.”

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.”2.4   The College 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 College to rebut the inference of discrimination raised. The College submits that the Complainant has failed to discharge this burden of proof and, consequently, the claim cannot succeed.

Summary - Bringing a Claim under the Employment Equality Acts

Section 85A of the Employment Equality Acts 1998 – 2011 sets out the burden of proof which applies to claims of discrimination.

It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the Respondent to prove the absence of discrimination.

The test for applying that provision is well settled in a line of decisions of the Workplace Relations Commission and the Labour Court as set out above and it requires the complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination.

It is only if this initial burden is discharged and the Adjudication Officer of the Workplace Relations Commission is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent.

If the complainant does not discharge the initial probative burden required, their case cannot succeed.