EDA2619

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00054519 (CA-00066405-001).

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer on 7th May 2025. Labour Court hearings took place on 23rd April 2026.

The following is the Determination of the Court:

RECOMMENDATION:

Background to the Appeal

This is an appeal by Mr. James Emime Pastor (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00054519, dated 24 March 2025) under the Employment Equality Act 1998 (‘the Act’). Notice of Appeal was received in the Court on 30 April 2025. The Court heard the appeal in Dublin on 23rd April 2026.

Factual Background

The Complainant was employed as a licensed security officer by Synergy Security Solutions Limited (‘the Respondent’) from 27th March 2024 until 20th September 2024. He was informed by letter on the latter date from the Respondent’s Employee Relations Manager that his employment was being terminated with immediate effect as he had not passed his probation. He was paid one week’s pay in lieu of notice.

The Claim

When asked by the Court to articulate his claim under the Act, the Complainant said that he had been treated unfairly when in the Respondent’s employment. When asked to give details of the alleged unfair treatment he referred to the work boots provided to him as part of the PPE issued by the Respondent and said that they were not a good fit. He also mentioned that he did not have the same access as colleagues throughout the site to which he had been deployed as he hadn’t received a proper ID badge.

Evidence of Mr. Stefano Michael

The witness told the Court that he is the Account Manager with responsibility for the client site to which the Complainant had been deployed. He said that the Complainant had come to his attention during his probationary period for a number of reasons. It was alleged that the Complainant was falling short in a number of areas including in fulfilling his patrolling duties and in his communication skills. The Complainant had also breached security protocols on the client site by being in possession of a personal mobile phone while on duty. The witness gave evidence of two performance-related meetings he had had with the Complainant during his probationary period following which he made a recommendation to Human Resources of failed probation.

In reply to questions asked of him under cross-examination, the witness said that no issue regarding the Complainant’s safety boots had ever been brought to his attention either directly or indirectly but, had an issue been raised, the Complainant could have been issued with replacement boots. The witness also said that the Complainant had the same access throughout the client site as all other colleagues but that he had received a temporary pass as he had not successfully completed all required training modules.

Burden of Proof

Section 85A(1) of the 1998 Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“Where in 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.”

This Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“The first requirement is that the claimant 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 claimant 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 these 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.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard: “The type or range of facts which may be relied upon by a complainant may 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 Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the Court stated that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

Discussion and Decision

The Court offered the Complainant a number of opportunities to outline why he believed that the matters he had complained of constituted discrimination within the meaning of the Act. At no point during the hearing did the Complainant provide anything – beyond a mere assertion – that the issues he has complained about were in any way linked to his race. He did not identify a comparator or establish any facts from which an inference of less favourable treatment on grounds of race, or any other protected ground, could be inferred. For these reasons the appeal fails and the decision of the Adjudication Officer is affirmed.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
JNF	______________________
21/05/2026	Deputy Chairman

NOTE

Enquiries concerning this Recommendation should be in writing and addressed to Julie Nicholl-Flood, Court Secretary.