Complainant

Respondent

Parties

Tony  Duffy

Road Safety Authority

Representatives

  Self Represented

Aisling McDevitt IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00065265-001

08/08/2024

The Complainant is employed as a Road Safety Vehicle Inspector and claimed that receiving mileage allowance from his base rather than his home was discriminatory relative to this colleagues.

The Complainant is a Vehicle Inspector. He advised there are 44 Enforcement Officers around the country. He is paid mileage allowance when attending inspections and receives the lower mileage allowance from his base or his home.. The Complainant lives 43 km from his designated base. He argued this was discriminatory relative to his colleagues as none of his other colleagues have to travel this amount of mileage without receiving a mileage allowance for same.

The case is referred under the Employment Equality Acts, and concerns claims by the Complainant against his employer, the Road Safety Authority alleging that he has been discriminated against due to his location as a result of the Respondent’s application of DPER Circular DPE126/005/2015, which applies to travel and subsistence rates.

The Respondent strongly refutes the claim being made. In the first instance, the Respondent submits that this claim is misconceived for the purpose of the Act. Discrimination on grounds of “location” is not a matter which can pursued under the Employment Equality Acts. Furthermore, the Respondent applies the circular consistently to all staff in the Complainant’s category. The application of same has been the subject of collective negotiation with the Respondent’s recognised Trade Union, Fórsa. While he may be aggrieved by the terms of same, no discrimination has occurred.

Preliminary Issue; As aforementioned, the Respondent’s strong position is that the claim is misconceived for the purpose of the Act. No discrimination of a direct or indirect nature has occurred. Direct discrimination is defined as occurring where one person is treated less favourably then another is, has been or would be treated and that person is of a different race, gender, marital status, family status, sexual orientation, religious belief, age, disability or membership of the traveling community. Direct discrimination consists of two elements. The first is the less favourable treatment of the individual making the complaint; the second is the existence of discriminatory grounds for that treatment. Both elements must be satisfied for a claim of discrimination to succeed. The Complainant has not clearly identified another person who in comparison he can argue he had been treated less favourably than or would be treated on the basis of one of the aforementioned grounds. Furthermore, the Complainant has not established the existence of a discriminatory ground at all. Thus, the Complainant has provided no evidence of that he has been treated less favourably than another person is, has been or would be treated for the purpose of the Act. Secondly, the Complainant has also failed to establish a causal link between any alleged discriminatory treatment and a discriminatory ground.

Indirect discrimination is deemed to occur where an apparently neutral provision, puts persons at a particular disadvantage compared with other employees based on one of the nine grounds covered by the Acts. There is no evidence to show that the Complainant has been indirectly discriminated against under the Acts.

It has been the well established practice of the WRC and the Labour Court to require a Complainant to present, in the first instance, facts from which it can be inferred that he or she was 2 treated less favourably than another person is, has or would be treated, on the basis of the discriminatory ground cited. It is only when he/she has discharged this burden to the satisfaction of an Adjudicator that the burden shifts to the Respondent to rebut the inference of discrimination raised. For the avoidance of doubt, all staff members in the Complainant’s grade are headquartered to the respondent’s base in Loughrea. Furthermore, a collective agreement is in place regarding travel and subsistence as agreed with the Respondent’s recognised Trade Union, Fórsa.

The Respondent applies its own policy and public sector circular DPE126/005/201in the same manner to all staff.  “Location”, as advance by the Complainant, is not one of the nine discriminatory grounds covered by the Acts. The Respondent therefore submits that in his initial complaint of 8th August 2024 the Complainant has failed to discharge this evidential burden and consequently, this claim under the Employment Equality Acts 1998 to 2015 must fail.

In the case of Employee v Employer UD969/2009, the Employment Appeals Tribunal was asked to make a decision on a preliminary matter first before moving to hearing the substantive case. Given the significant preliminary points raised, the Tribunal moved to hear the preliminary matter first and reach a decision on same.

In the case of Bus Eireann v SIPTU PTD8/2004 the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case ‘where it could lead to considerable savings in both time and expense’ and where the point was ‘a question of pure law where no evidence was needed and where no further information was required’.The Respondent in this instant case would suggest that a similar situation arises here and respectfully requests that the Adjudicator reach a determination first and foremost on this preliminary issue before deciding if the substantive case can be heard

The Law;

Section 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 Act referred to as “the Traveller community ground”).

The Complainants main case was that he was being discriminated against on the basis he was not given mileage from his home and having mileage applied from his nominated base was unfair to him relative to other Enforcement Officers.  No other grounds were put forward by the Complainant and he had sight of the Respondents preliminary objection well in advance of the Hearing.  The discriminatory reason put forward by the Complainant , location, is not one of the discriminatory grounds contained in the Act and the complaint is therefore misconceived under the Act.

I find that the Complainant has not established a prima facia case of discrimination under any of the discriminatory grounds in the Act and find he was not discriminated against.

Discrimination