EDA2145

FULL RECOMMENDATION

SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015

PARTIES :

BIDVEST NOONAN (ROI) LTD
(REPRESENTED BY MANAGEMENT SUPPORT SERVICES)

- AND -

MS ERITA IVANOVA

DIVISION :

SUBJECT:

1. Appeal of Adjudication Officer Decision No. ADJ-00014770 CA-00018940-003

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section (83) (1) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 18 November 2021. The following is the Court's Determination:-



DETERMINATION :

Background.

This is an appeal by Ms. Ivanova, ‘the Complainant’ of an Adjudication Officer’s,(AO) Decision under the Employment Equality Acts 1998-2015, ‘the Acts’.

The Complainant began working for another company as a cleaner in 2004. In 2010 her employment transferred in a transfer of undertakings to Bidvest Noonan, ‘the Respondent’.

Employment Regulation Order, ‘ERO’, increases in 2015 and 2016 were not applied to the Complainant’s pay. The Respondent justified this on the grounds that the Complainant was in receipt of a pay rate in excess of the ERO rates at the time.

The Complainant lodged a complaint under the Acts.

The Complaint was not upheld by the AO.

The Complainant appealed this Decision.

Deliberation.

The Complainant represented herself in the instant case.

She put to the Court that as an employee with lengthy service, she was discriminated against under the Acts as she did not receive pay increases while such increases were paid to newly hired staff, that this shows she was discriminated against because of her length of service and that this constituted indirect discrimination.

The Court, recognising that the Complainant was representing herself, noted to her that length of service was not, itself, one of the nine grounds on which a claim of discrimination can be based under the Acts and that she would have to cite one of the grounds provided for in the Acts if there was to be a valid appeal before the Court. She was unable to do so.

Even if the Court was to engage in the dubious exercise of assuming that the intention was to argue discrimination on grounds of age, it would be necessary for the Complainant to show some evidence of such alleged discrimination. As per Melbury Developments v. Valpeters (2010) ELR 64, ‘mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’.

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.’

Therefore, for the Complainant to succeed in her appeal, she would need to ground her case in one of the nine grounds in the Acts and she would need to produce evidence to show that an act of discrimination had occurred.

In the absence of either of these requirements, the Complainant’s appeal cannot succeed.


Determination.

The decision of the Adjudication Officer is affirmed.

NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.