Inference of Discrimination – The Employment Equality Acts

Introduction

In ‘Hyde and Seek Glasnevin - And - Jade Byrne-Hoey’, the issue of an honest belief in the fact that one is being discriminated, on one of the protected grounds under the Employment Equality Acts, and the requirement to prove discrimination in progressing a claim, was examined.

Ms. Byrne-Hoey Hoey felt she was discriminated against on age grounds, in that she was younger than many of her colleagues and had been treated differently when she was given a warning for what was described as a ‘failure to follow a reasonable management instruction on 11 June 2019. Unprofessional behaviour in the workplace’ and she was told that her ‘behaviour in the office was unacceptable and unprofessional’.

Background

This was a cross-appeal by Ms. Byrne-Hoey, (the Employee) and Hyde and Seek Glasnevin Ltd (the Employer), of a Decision by an Adjudication Officer, under the Employment Equality Acts 1998-2015.

The Employee was employed by the Employer as a Childcare Assistant from April 2019 to June 2019.

The Employee lodged a complaint under the Employment Equality Acts with the Workplace Relations Commission, ‘WRC’, that she had been discriminated against contrary to the Employment Equality Acts.

An Adjudication Officer decided that the claim was well-founded and awarded compensation of €2000.

The Employer appealed the Decision. The Employee appealed the quantum awarded.

Employment Equality Acts and the Burden of Proof

S. 6(2)(f) of the Employment Equality Acts provides protection against less favourable treatment based on age.



S. 85A of the Employment Equality Acts states that the burden of proof rests with a complainant in the first instance and that it is only if an inference of discrimination can be drawn from the facts that the burden shifts to a respondent.

As was noted in Margetts v Graham Anthony Ltd, EDA038;

‘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 applying this consideration to the instant case, the Labour Court held that the complainant’s age was not sufficient, by itself, to give rise to a claim of discrimination.

As the Labour Court observed in Mitchell v. Southern Health Board (2001) 12 E.L.R. 201, it is only if primary facts are established to the satisfaction of the Labour Court and that they are regarded as of such significance to raise a presumption of discrimination that the burden shifts to the respondent.

In the instant case, no mention was ever made of age in any inter-action between the Employee and the Employer and, in the view of the Labour Court, nothing that was said or done could lead to an inference of different treatment due to an age difference.

Conclusion

Beyond expressing the belief that she was treated differently because of her age, the Employee put forward no arguments to suggest to the Labour Court that age was a factor in her treatment such that the Labour Court could accept that there was an inference of discrimination and that the requirements of s.85A of the Employment Equality Acts had been met.

An argument that the Employee was treated less favourably because she was a probationer and that probation is a proxy for age had even less conviction. At no stage did the Employer do or suggest anything that could give rise to such an inference.

Accordingly, the Labour Court determined that the Employee has not met the requirement to establish a prima facie case of discrimination, the Labour Court did not uphold the Employee’s appeal and did uphold the appeal of the Employer.