ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012718
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 03/09/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant applied for a position with the Respondent. He was unsuccessful. He has claimed that he was discriminated against on grounds of his gender. He has sought compensation.
Preliminary Point Prima Facie Case not established
Summary of Respondent’s Case:
The Respondent raised a preliminary point that the Complainant has not discharged the burden of proof of establishing a prima facie case of discrimination as is required by Sec 85A of the Employment Equality Acts 1998 to 2015.
The Complainant in his complaint form to the WRC has used words “a possibility that I had in fact been discriminated against” and “perhaps my gender played a role”. This is a clear indication that that he has failed to establish a prima facie case of discrimination. He has merely speculated upon the possibility of its occurrence which is vastly removed from the onus the legislation places on the complainant.
They cited a considerable case law in support.
Melbury v Valopeters EDA/0917
The Southern Health Board v Dr Teresa Mitchell DEE 011
Cork City Council; v Kieran McCarthy EDA 0821
The Minister for Finance v The Civil and Public Service Union  IEHC 14
Brannigan v The Equality Tribunal and County Louth VEC  IESC 40
Killeen v Director of Public Prosecutions  3.I.R. 218.
They stated that in this case 23 males and 15 females applied for the posts. 4 males and 1 female were shortlisted. 3 males were appointed.
Following this selection process, the Respondent emailed the Complainant to advise that he may be suitable for a senior consultancy role.
He was offered a more junior role in the company.
They stated that the recruitment process is very fraught with expectation. The Respondent has a strong diversity team and they rebut any allegation of discrimination. The Complainant was unsuccessful because he didn’t have the experiences of the successful candidates. The Respondent has a strong diversity policy and practice in place. They have policies, provide training, carry out role playing, carry out skills training e.g interviewing techniques. They have women’s groups, LGBT groups, cultural and gender balancing interventions.
This complaint is rejected. The Complainant has failed to establish a prima facie case of discrimination. He has claimed that he was discriminated against on grounds of his gender yet all three posts were filled with males and he was offered a more junior role. Therefore, there is no basis for this complaint.
Summary of Complainant’s Case:
The Complainant has stated that the Respondent has sought and received a postponement on a number of times and now they are seeking the dismissal of this case before it is heard on the basis that he has not discharged the burden of proof of establishing a prima facie case of discrimination. The Respondent claims that using words “a possibility that I had in fact been discriminated against” and “perhaps my gender played a role” is a clear indication that he has failed to establish a prima facie case of discrimination as required by the Act. He has stated that he has no legal training nor professional or personal experience with these claim forms and his choice of words in the claim form do not negate his assertion nor do they amount to mere speculation of discrimination he asserts but rather his use of the word “possibility” and “perhaps” articulate his belief that he has been discriminated against contrary to the Acts. However, the final determination on this matter is the ultimately to be made at the hearing upon the review of the facts and submissions on the substantive issue. Sec 85 A5(1) states “Where is 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. He cited Valpeters v Melbury Developments Ltd in support. He stated that the facts and credibility of evidence which he has submitted within his claim reviewed in its entirety, cannot be rebutted by a mere contention that his choice of words alone albeit poor choice of words amount to a clear indication that he has failed to discharge the burden establish a prima facie case of discrimination and respectfully submit that the Respondent has a case to answer.
Findings and Conclusions:
I find that Section 85A of the Employment Equality Acts 1998 – 2011 sets out the burden of proof which applies to claims of discrimination. It provides, in effect, that where facts are established by or on behalf of a complainant from which discrimination may be inferred, it shall be for the respondent to prove the absence of discrimination.
The test for applying that provision is well settled in a line of decisions of the Equality Tribunal and the Labour Court and it requires the Complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden of proving that there was no infringement of the principle of equal treatment passes to the Respondent. If the Complainantdoes not discharge the initial probative burden required the case cannot succeed.
It has been the well-established practice of the Equality Tribunal and the Labour Court to require a complainant to present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited. The Labour Court has stated that its jurisprudence in this matter stems from the Court’s analysis in Southern Health Board v Mitchell, DEE011,  ELR 201, where the Court stated: “The first requirement is that the complainant 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 complainant 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 those 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”.
In Margetts v Graham Anthony & Company Limited, EDA038,the evidential burden which must be discharged by the complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court. The Labour Court stated as follows: “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.”
I note that the Respondent submitted that it is only when the Complainant has discharged this burden to the satisfaction of an Adjudication Officer that the burden shifts to them to rebut the inference of discrimination raised.
In this case I find that despite the Complainant’s protestations about the use of language he did state on his complaint form “a possibility that I had in fact been discriminated against” and “perhaps my gender played a role”.
I find that this is a clear statement of a lack of sureness.
I find that he is relying upon discrimination on gender grounds.
I note that he has not named a comparator.
I find that in this selection process 23 males and 15 females applied. 4 males and 1 female were shortlisted and 3 males were successful.
I find that he was offered a more junior role to that which he had applied for.
I find that this is clear evidence that appointments were made and it cannot be inferred that he was treated less favourably because he was male as all males were successfully appointed and he was offered a position.
I must find that the Complainant has failed to establish a prima facie case of discrimination.
I find that the Complainantdid not discharge the initial probative burden required therefore the case cannot succeed.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
For the above stated reasons, I have decided that this complaint should fail.
Dated: 26th October 2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
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