EDA2335

1. Appeal Of Adjudication Officer Decision No ADJ-00030106 CA-00040173-002

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 on 21st March 2023. A Labour Court hearing was held on 14th September 2023. The following is the Determination of the Court:

DETERMINATION:

Introduction
This is an appeal by Ms Viksna (the Complainant) against the Adjudication Officer’s Decision ADJ-00030106 CA-00040173-002 in her complaints of discrimination on the ground of disability and race by Cardinal Health Ireland Manufacturing Ltd (the Respondent). The complaint was made pursuant to the Employment Equality Acts 1998-2015 (the Acts). The Adjudication Officer found that the complaints were not well-founded. There is a linked case TE/23/26.

Background

The Complainant was employed with the Respondent as a general operative from 1^st November 2005. The Complainant lodged her complaints of discrimination in the grounds of disability and race with the WRC on the 30th September 2020. The cognisable period for the purpose of the Act therefore is 31st March 2020 to 30th September 2020.

In the course of her submission the Complainant identified one of her work colleagues as a comparator who she stated had a disability in that she has Lupas. The comparator was not in Court. The Court decided to identify the comparator as Ms X in the determination. The Complainant in her submission had raised a number of issues that do not fall within the remit of the legislation that she has taken her complaints under, and on that basis the Court informed her that those issues were not properly before it for consideration. The Complainant was further informed that the Court could not consider events that had occurred after her complaint had been lodged with the WRC.

Summary of Complainant’s case

It is the Complainant’s case that she was discriminated against by the Respondent on the grounds of disability and race during the cognisable period as set out above. The Complainant submitted that the date of discrimination was 13th July 2020. The Complainant submitted that her comparator in respect of her disability was Ms X who she submitted had Lupus and that this was a disability that the Respondent was on notice of. The Complainant stated that her disability was that she suffered from stress and anxiety and that she notified the employer of this when she presented her medical certificate certifying her as unfit for work from the 20th July 2020. The Complainant returned to work on the 26th November 2020 following that absence.

The Complainant submitted that in and around the 30th June 2020 she started getting a pain in her back/shoulder blade when she was at work. When she raised this with her supervisor, she was told she could go home but would not get paid. The Complainant stated that her comparator was facilitated with doing different work when she had an issue. The Complainant stated that she raised this issue in respect of the work she was doing and the need for rotation with her line manager, and on the 13tth July she received an email stating her grievance would be processed over the next few days. However, she felt she could no longer stay in the workplace and was certified unfit for work by her GP.

In respect of her complaint on the ground of race the Complainant stated her comparator was an Irish worker. It was her submission that because English was not her first language, she felt her supervisor treated her differently and twisted her words. She accepted that this was not related to the fact that she was Latvian, but she believed it was linked to the fact that English was not her first language which she felt was discriminatory. The Complainant gave the example of how in a conversation with her supervisor she stated that she was warning the supervisor as in bringing something to her attention, but the supervisor seemed to think she was threatening her.

Summary of Respondent’s position

It is the Respondent’s position that the Complainant was not discriminated against either on the race or disability ground. The Respondent submitted that the Complainant has failed to establish a prima facia case of an act of discrimination during the cognisable period. In relation to the comparator the Respondent was not aware that the comparator suffered from Lupus or had a disability nor were they on notice of the Complainant having a disability.

The Complainant in her own submission stated that her disability was anxiety and stress which she only notified to the Respondent on the 20th July 2020 a week after the alleged Acts of discrimination. In respect of the complaint on the race grounds the Complainant accepts that the act she is alleging that was discriminatory was not linked to the fact that she was Latvian, but to the fact that English was not her first language. The Respondent disputed that the Complainant was treated differently because English was not her first language and went on to submit that the Complainant has failed to identify a breach of the Act within the cognisable period or at all and therefore her complaints must fail.

The relevant law

Discrimination in accordance with the Acts is set out in s6 and states:_

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where —

• ( a ) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘ discriminatory grounds ’ ) which —

  (i) exists,

  (ii) existed but no longer exists,

  (iii) may exist in the future, or

  (iv) is imputed to the person concerned,

  ( b ) a person who is associated with another person —

  (i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

  (ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a) , constitute discrimination.

  (2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are—

  ( a) that one is a woman and the other is a man (in this Act referred to as “ the gender ground”),

  ( b) that they are of different civil status (in this Act referred to as “ the civil status ground ”),

  ( c) that one has family status and the other does not (in this Act referred to as “ the family status ground”),

  ( d) that they are of different sexual orientation (in this Act referred to as “ the sexual orientation ground”),

  ( e) that one has a different religious belief from the other, or that one has a religious belief and the other has not (in this Act referred to as “ the religion ground”),

  ( f) that they are of different ages, but subject to subsection (3) (in this Act referred to as “ the age ground”),

  ( g) that one is a person with a disability and the other either is not or is a person with a different disability ( in this Act referred to as the “disability ground”)

  (h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “the ground of race”)

  (i) that one is a member of the Traveller community and the other is not (in this Actreferred to as “the Traveller community ground).

  (2A) Without prejudice to the generality of subsections (1) and (2) , discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated.

  (3) ( a ) The age ground applies only in relation to persons above the maximum age at which a person is statutorily obliged to attend school.

  ( b ) Notwithstanding subsection (1) and section 37(2) , an employer may set a minimum age, not exceeding 18 years, for recruitment to a post.
  
  

It is for the Complainant in the first instance as set out by this Court in Mitchell v Southern Health Board [2001] ELR 201 to raise an inference of discrimination before the burden shifts to the Respondent to prove that there was no infringement of the principle of equal treatment. In order to raise an ‘inference’ the Complainant must prove the primary facts upon which he relies. In Melbury Developments v Arturs Valpeters EDA0917 the Court stated “ 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. 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”.

The Complainant in her submission to the Court has identified issues that she raised with her supervisor and which she believes were not addressed properly. In her own submission she confirmed that her disability was anxiety and stress and that she only put the Respondent on notice of this when she submitted a medical certificate to cover her absence from 20th July 2020 to 26th November 2020. The Complainant has failed to identify any act of discrimination linked to her disability during the cognisable period or at all and therefore that element of her complaint must fail.

In respect of her complaint of discrimination on the race ground the Complainant accepted that the incident she raised was not related to her race, but she felt it was because English was not her first language. On the basis that the Complainant has failed to identify an act of discrimination linked to her race, this element of her complaint must also fail.

The Court, having carefully considered the incidents identified by the Complainant and the Respondent’s response to same as set out above, finds that in the circumstances of this case the Complainant has not made out a ‘prima facie’ case and therefore her claim cannot succeed.

Determination
For the reasons set out herein, the Court is satisfied that the Complainant was not discriminated against on the ground of disability and or race ,therefore, her complaints must fail. The Complainant’s appeal cannot succeed, and it is dismissed.

The Decision of the Adjudication Officer is affirmed.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CDK	______________________
9 October 2023	Deputy Chairman