Equality Law In Practice
If you believe you’ve been discriminated against at work, Irish law is on your side, but you need to understand how the burden of proof works before you bring a claim.
The Employment Equality Acts 1998–2015 protect employees from discrimination on nine specific grounds. But winning a claim isn’t just about what happened to you, it’s about what you can prove, and when the burden shifts to your employer.
Here’s how the process works in practice.
The Burden of Proof: Section 85A
Section 85A of the Employment Equality Act is the starting point for every discrimination claim. It establishes a two-stage test:
You establish the primary facts. You must present facts from which discrimination can reasonably be inferred.
The burden shifts to your employer. Once those facts are established, your employer must prove that discrimination did not occur.
This applies to all forms of discrimination under the Acts, including indirect discrimination, victimisation, harassment, and sexual harassment.
The key point: you don’t need to prove discrimination definitively at this first stage. You need to raise a presumption of discrimination, strong enough that your employer has a case to answer.
What Counts as “Primary Facts”?
There is no fixed list of facts that will establish a discrimination claim. The Workplace Relations Commission (WRC) and the Labour Court have consistently held that the facts relied upon must simply be of sufficient significance to raise a presumption of discrimination.
In Melbury Developments v Valpeters, the Labour Court made clear that:
- The facts will vary from case to case
- There is no closed category of facts you can rely on
- The facts must be established on credible evidence, not speculation or unsupported assertions
This is critical. Many claims fail at this first hurdle because the complainant cannot point to concrete, evidence-backed facts that support an inference of discrimination.
You Must Show Less Favourable Treatment
It is well-established WRC and Labour Court practice that a complainant must present facts showing they were treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.
The landmark case of Southern Health Board v Mitchell set out the test clearly: you must prove, on the balance of probabilities, the primary facts you rely on. Only if those facts are of sufficient significance to raise a presumption of discrimination does the onus shift to the respondent.
You Don’t Need to Prove Discrimination Is the Only Explanation
One important point that many employees overlook: at the initial stage, you are establishing a prima facie case. You do not need to show that discrimination is the only, or even the most likely, explanation for what happened.
As the Labour Court held in Cork City Council v McCarthy, it is enough that the presumption of discrimination falls within the range of inferences that can reasonably be drawn from the established facts.
This is a lower threshold than many people assume, and it’s one reason why proper legal advice early in the process is so important.
Your Employer Can Challenge the Facts
It’s important to understand that your employer is not silent during the first stage of the process. The respondent can present evidence to show that:
- The alleged discriminatory acts never happened
- The treatment was not, in fact, less favourable
- The comparator or comparison situation is not truly comparable
- Even if less favourable treatment occurred, it was not connected to any discriminatory ground
The Labour Court has confirmed that all evidence should be considered in its proper context when determining whether the burden of proof shifts.
What Happens If You Can’t Establish the Primary Facts?
If you cannot discharge the initial burden of proof, your claim will not succeed. The legislation is clear on this point, and the Labour Court has consistently upheld it.
Falling within a protected ground, age, gender, disability, race, religion, sexual orientation, civil status, family status, or membership of the Traveller community, is not enough on its own to establish a claim. You must point to additional facts from which discrimination can be inferred on the balance of probabilities.
How the Full Process Works
To summarise the burden of proof framework:
Stage 1 – The Complainant’s Burden:
You establish primary facts, supported by credible evidence, from which discrimination may be inferred. These facts must be of sufficient significance to raise a presumption of discrimination.
Stage 2 – The Respondent’s Burden:
If Stage 1 is satisfied, the burden shifts to your employer to prove that the principle of equal treatment was not breached.
If Stage 1 is not satisfied:
The claim cannot proceed. The Adjudication Officer or Labour Court will find in favour of the respondent.
Get Expert Legal Advice Early
Employment discrimination claims are winnable, but they require careful preparation, strong evidence, and a clear understanding of how the burden of proof operates.
If you believe you have been discriminated against at work, the earlier you seek legal advice, the stronger your position will be.
Barry Crushell is a qualified solicitor with expertise in employment law, practising from Arran Square, Dublin 7. Contact us today to discuss your case.
01 611 1546
