Complainant

Respondent

Parties

Chantelle  Keenan

Benzar Vizion Limited

Representatives

Self-represented 

Joe Deasy

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00066073-001

17/09/2024

The Complainant referred her claim to the Director General of the WRC on 17 September 2024 alleging that she was discriminated against by the Respondent in getting a job by reason of her membership of the Traveller community. She sought compensation.

The complaint was lodged with the WRC on 17 September 2024. The cognisable period for the purpose of the Act is 18 March to 17 September 2024.

The Respondent rejects the claim.

At the adjudication hearing, Mr Deasy confirmed that he is a former director and a former owner of the business. He brought to the Adjudication Officer’s attention that the name of the Respondent in the Complainant’s WRC complaint referral form was incorrect. He consented to the amendment of the form and the within decision reflects the correct name of the Respondent.

WRC complaint referral form

In the complaint referral form, the Complainant’s father stated, on her behalf, that the Complainant went into the shop looking for a summer position. She sent a CV but was not called for an interview. The Complaint and her father went to the shop to ask why she was not offered a position. It was stated in the written submission that the Mr Deasy (the then owner of the business) said to the Complainant that he would not offer her any position because her friends would be in and around the shop. It was further stated that Mr Deasy said to the Complainant that he had issues with some members of the Complainant’s family.

The written submission went on to say that the Complainant’s father said to Mr Deasy that whatever issues he had with members of the extended family, it had nothing to do with his children. The Complainant’s father told Mr Deasy that it was discrimination.

It was submitted that Mr Deasy said that when the Complainant’s brothers were small, Mr Deasy had issues with them. The Complainant’s father replied that it was not the Complainant, and it should not come against her.

The Complainant’s father worked in the shop previously.

Summary of direct evidence and cross-examination of the Complainant

The Complainant, in her direct evidence said that at some stage in April/May 2024 she spoke with Mr Deasy and asked for a job. She said that he replied that he would not give her a job because her friends would be hanging around. She said that she left her CV but had no further communication from the Respondent.

In cross-examination, the Complainant confirmed that it happened in April/May 2024 but could not provide a date. She said that it occurred in the wine section of the shop.

Summary of direct evidence and cross-examination of Mr Thomas Keenan, the Complainant’s father

Mr Keenan said that in April/May 2024 he went with the Complainant to the shop to ask for a job for her. She gave her CV and spoke with Mr Deasy.  Mr Keenan said that Mr Deasy said that he would not employ the Complainant because her family would be there robbing. Mr Keenan said that this could not be held against her.

Mr Keenan said that staff left in August 2024 and the Respondent employed someone. The Respondent could have asked the Complainant at that time to come and work in the shop.

Mr Keenan said that he had worked for the Respondent previously for some 3 years. He said that he always had great respect for Mr Deasy and had a great relationship with staff in the shop.

Mr Keenan said that the Complainant is in college now. He is employed and works with children with special needs. He said that he wants his kids to do well.

In cross-examination, Mr Keenan confirmed that some family members were barred from the shop. He did not dispute that in 2021 his wife came to the shop with a buggy and took some items without paying. He did not dispute that Gardaí were involved but Mr Deasy did not pursue charges. Mr Keenan said that he explained to Mr Deasy at the time that her wife’s medication was changed at that time.

In reply to Mr Deasy’s submission, Mr Keenan said that he was not aggressive. He said that he thought if one speaks to someone in a nice manner, one gets the point across quicker. He further said that the Complainant wants to do better and wants a job.

Mr Joe Deasy attended on behalf of the Respondent. Mr Deasy said that he sold the business and new directors took over on 9 October 2024. Mr Deasy confirmed that the matter of the Complainant’s claim was discussed with the solicitors and he was authorised to represent the business at the adjudication hearing.

Mr Deasy said that he never met the Complainant at the shop, as alleged. He said that Mr Keenan at some stage asked for a job for the Complainant, but he did not have any at that time. Mr Deasy said that two youngsters joined the Respondent in April 2024. Mr Deasy was gone from the business from 18 May 2024 onwards.

Mr Deasy said that he got on well with Mr Keenan and his family. He said that he does not discriminate. He said that he had dealt himself with all issues with the kids in Mr Keenan’s family. He did not involve Gardaí. He said that several of Mr Keenan’s and the Complainant’s family members were barred from the shop.

Mr Deasy said that he met with Mr Keenan in August 2024. Mr Deasy said that Mr Keenan was quite bullying when asking why he did not give a job to the Complainant. He said at no stage was he given the Complainant’s CV.

Mr Deasy exhibited a list of employees of the Respondent. The document evidenced that there were two staff members recruited in April 2024 (started on 5 and 19 April 2024). There were no jobs advertised and no one was recruited until 30 August 2024.

This complaint concerns a claim by the Complainant that at some stage in April/May 2024 she was discriminated against by the Respondent on the grounds of her membership of the Traveller community, contrary to the provisions of the Employment Equality Act 1998, as amended, when she was refused access to employment.

Relevant law

Discrimination for the purposes of this Act.

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—

…

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

Discrimination by employers etc.

8.—(1) In relation to—

(a) access to employment,

(b) conditions of employment,

(c) training or experience for or in relation to employment,

(d) promotion or re-grading, or

(e) classification of posts,

an employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discriminate against an agency worker.

(2) For the purposes of this Act, neither an employer nor a provider of agency work shall be taken to discriminate against an agency worker unless (on one of the discriminatory grounds) that agency worker is treated less favourably than another agency worker is, has been or would be treated.

(3) In subsections (4) to (8), references to an employee include references to an agency worker and, in relation to such a worker, references to the employer include references to the provider of agency work.

(4) A person who is an employer shall not, in relation to employees or employment—

(a) have rules or instructions which would result in discrimination against an employee or class of employees in relation to any of the matters specified in paragraphs (b) to (e) of subsection (1), or

(b) otherwise apply or operate a practice which results or would be likely to result in any such discrimination.

(5) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to access to employment if the employer discriminates against the employee or prospective employee—

(a) in any arrangements the employer makes for the purpose of deciding to whom employment should be offered,

(b) by specifying, in respect of one person or class of persons, entry requirements for employment which are not specified in respect of other persons or classes of persons, where the circumstances in which both such persons or classes would be employed are not materially different, or

(c) by publishing or displaying, or causing to be published or displayed, an advertisement which contravenes section 10(1) in so far as such advertisement relates to access to employment.

(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

(c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.

(7) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to training or experience for, or in relation to, employment if, on any of the discriminatory grounds, the employer refuses to offer or afford to that employee the same opportunities or facilities for employment counselling, training (whether on or off the job) and work experience as the employer offers or affords to other employees, where the circumstances in which that employee and those other employees are employed are not materially different.

(8) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee in relation to promotion if, on any of the discriminatory grounds—

(a) the employer refuses or deliberately omits to offer or afford the employee access to opportunities for promotion in circumstances in which another eligible and qualified person is offered or afforded such access, or

(b) the employer does not in those circumstances offer or afford the employee access in the same way to those opportunities.

Comparator

Section 28 of the Acts in relevant parts provides that:

28. The comparators

28.—(1) For the purpose of this Part, “C” and “D” represent 2 persons who differ as follows:

…

(h) in relation to the Traveller community ground, C is a member of the Traveller community and D is not, or vice versa.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.  It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her.  If she succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. 

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. The Labour Court elaborated on the interpretation of section 85A in the case of Melbury Developments Limited v Arturs Valpeters EDA0917 where it held that section 85A:

‘…. 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.’

In Cork City Council v McCarthy EDA0821, the Labour Court stated as follows about the burden of proof:

‘The type or range of facts which may be relied upon by a complainant can 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 or 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 order to shift the burden of proof to the Respondent, the Complainant must not only establish the primary facts being relied upon but must also establish that those facts are of sufficient significance to raise an inference of discrimination.

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.’

To determine whether the Complainant has established a prima facie case a three-tier test is employed: (1) the Complainant must establish that she is covered by the relevant discriminatory ground; (2) she must establish that the specific treatment alleged has actually occurred; and (3) it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

As highlighted in the Valpeters determination: ‘the Complainant must first establish facts from which discrimination may be inferred’ and that such facts must ‘be of sufficient significance to raise a presumption of discrimination.’

Crucially, it also highlights that these ‘must be established as facts on credible evidence.  Mere speculations or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.’

There was no dispute that the Complainant is a member of the Traveller community and the Respondent, who was acquainted with the Complainant and her family, was aware of same.

It was submitted that the Complainant was treated less favourably by the Respondent, and I was invited to infer that she was so treated because of her membership of the Traveller community. Such an inference could only be drawn if there was evidence of some weight from which it could be concluded that a comparator for the purposes of the Acts, was treated more favourably than the Complainant.

However, the Complainant does not rely on a comparator in support of her claim which creates a flaw in the evidence that the Complainant is required to address. The Complainant did not proffer any evidence to show that the alleged treatment she was subjected to was less favourable than the treatment afforded to a comparator, actual or hypothetical, who does not have the characteristic relied upon. She has not evidenced that– because she is a member of the Traveller community – she was treated adversely compared with the way another job applicant was treated.

Furthermore, I find the evidence proffered by and on behalf of the Complainant unreliable. Neither the Complainant nor her father could recall the date, even approximate, on which the alleged discrimination took place. Reference was made to April and May 2024. The Complainant’s very brief evidence was that on an unspecified date she asked Mr Deasy for a job, and he replied that he would not give her a job because her friends would be “hanging around”. While the Complainant said that she left a CV, she also said that she had no copy of the CV and/or a cover letter available.

Ms Deasy, on behalf of the Respondent gave cogent evidence supported by documentary evidence that two staff members were recruited in advance of commencing to work for the Respondent on 5 and 19 April 2024 respectively and there were no other staff recruited until August 2024. There were no jobs available at the relevant time for the Complainant to apply for.

Even if it was accepted that the Complainant had a conversation about getting a job with the Respondent at some stage in April/May 2024, in the absence of vacant positions within a company, the Complainant could not have expected that a job would be offered to her.

The obligation rests with the Complainant to provide credible evidence to raise the allegations to meet the standard of “established facts.” As set out in Melbury Developments Ltd. v Valpeters cited above “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” In this case, the Complainant made an allegation that she was not given a job with the Respondent because of her membership of the Traveller community. However, I am not satisfied that I have been presented with evidence from which I could reasonably conclude that the Complainant was discriminated against by the Respondent on the grounds of her membership of the Traveller community.

I declare this complaint to be not well founded. The Complainant has failed to establish a prima facie case of discrimination on the grounds of her membership of the Traveller community.

Traveller community – discrimination - job