Is Mistreatment Discrimination?

When does mistreatment amount to discrimination?

A matter recently came before the Labour Court which examined the criteria necessary to prove a claim of discrimination. The complainant employee in this matter (Ms Violeta Cucovic -v- Centric Health Primary Care Limited EDA2125) contended she was discriminated against on grounds of her gender, civil status, religion, age and race. This matter had already been adjudicated on by the Workplace Relations Commission which did not find in her favour.

Allegations of discrimination

The complainant employee made a range of allegations during the course of the Labour Court hearing impugning the honesty and integrity of various named individuals she previously worked with. However, the Labour Court had to decide whether the mistreatment complained of arose specifically because of her having a different gender, civil status, religion, age or race to her named colleagues.

Discrimination and Irish case law

Section 85A of the Act provides for the allocation of the probative burden as between parties. Subsection (1) of that section provides: -

“(1) Where in any proceedings 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.”

The established test for deciding if the probative burden shifts by application of this subsection is that formulated by this Court in Southern Health Board v Mitchell [2001] E.L.R. 201. Here the Court considered the extent of the evidential burden that a Complainant must discharge before the respondent is fixed with the burden of proof.

The Court held: -

“The first requirement is that the claimant 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 claimant 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 these 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 Court later elaborated on the application of that test in Determination EDA0821, Cork City Council v McCarthy and commented as follows:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary 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 reasonably be drawn from those facts.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that“mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Mistreatment v discrimination

The respondent employer noted that a number of allegations had been made against their staff but, notwithstanding the accuracy of those allegations, went on to note that, even if the allegations the complainant cited were true, they could not be held to amount to behaviour which constituted discrimination within the meaning of the Employment Equality Acts on any of the protected grounds.

The Labour Court agreed and noted that no submission had been made by the complainant which detailed that the treatment of her was different to that treatment received by any named comparator of a different gender, civil status, religion, age or race. Although the Labour Court did concede that there may have been an acrimonious relationship between the complainant employee and a number of her colleagues, these differences did not arise specifically because of her gender, civil status, religion, age or race. That being the case, the Labour Court agreed with the Workplace Relations Commission that the complainant employee had failed to discharge the burden of proof resting upon her in accordance with Section 85(a) of the Employment Equality Act.

Conclusion

The takeaway for both employers and employees is that, although workplace disputes do exist, an employee will need to show very specific evidence that the mistreatment they are receiving from their employer or colleagues is because of one of their protected characteristics, if they are to be successful in raising a complaint under the Employment Equality Act.

Further Information

For further information, please contact the author of this article, Barry Crushell.