Direct Discrimination

Prejudice, Discrimination, and less favourable treatment always reflect on the person judging and not the person being judged. Everyone should be treated equally.

So that’s what the great legal minds say…

Make Sense?…not really!

In a nutshell, to establish direct discrimination, it is necessary to prove that, but for the fact that the claimant falls within one of the protected grounds (i.e. his age, her gender, her pregnancy etc.) he or she would have been treated better and not less favourably.

As such, it is necessary to identify an actual or theoretical comparator against whom you can be compared, in a comparable situation, who is, has, or would be treated differently from how you were treated. In essence, someone doing the same job as you, in similar circumstances, but being treated differently (more favourably). The real, as opposed to a hypothetical comparator, is required where there are actual comparators. A court cannot and should not favour a claimant based on speculation.

The claimant must prove that the difference in treatment is due to discrimination on one of the protected (discriminatory) grounds. This is called making out a prima facie case, making these cases so hard for claimants to win.

Once the Claimant has made a prima facie case, the burden of proof shifts to the Employer to prove otherwise.

So, what the hell does prima facie mean? I find it best if you think of it as “on the face of it.

It essentially means that you must prove facts that, on the face of it or in their normal interpretation, leaving any context aside, would indicate that there had been the discriminatory treatment of you.

The Acts provide that where facts are established by the claimant from which it can be presumed that there has been discrimination, it is for the employer to prove the contrary.

The claimant, therefore, must, in the first place, establish facts from which it can be presumed that he was subjected to discriminatory treatment on the grounds of one of the nine characteristics above (called proving a prima facie case).

It is only when he has discharged that obligation to the satisfaction of the adjudicator or tribunal that the burden shifts to the Employer to rebut or disprove the inference of discrimination raised.

For example, the fact that a woman was dismissed while she was pregnant is prima facie evidence of discrimination, it is for the employer to prove that she was not dismissed because of her pregnancy.

Similarly, a man who is dismissed for reaching the age of retirement is prima facie on the grounds of his age, and it is for the employer to show some objective grounds why he was not.

In a case called Dublin Corporation v. Gibney’s EE5/1986, a prima facie case was defined as:

“evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination has probably occurred.”

So, the claimant must first establish facts from which discrimination may be inferred. They must be established as facts on credible evidence. Mere speculation and assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.

“In relation to the comparator, it is not sufficient, in my view, to ignore actual comparator workers and assert that a hypothetical Irish employee would not have been treated in the same manner by the respondent.”

Thus, you first need to prove that you are within a protected group under the Act, i.e. that you are female, of a particular race or disabled, for example. You then need to prove the treatment to which you say you were subjected, i.e., that you were dismissed, bullied, or victimised.

You need to highlight specific incidents of this, such as what was said, where, when and by whom and finally, you need to show that this is less favourable treatment than someone else might have experienced. As already shown, the difficulty here often arises in demonstrating the type of treatment you suffered.

There will rarely be a recording of discriminatory treatment (one that you can get your hands on anyway) or an email or letter explicitly showing less favourable treatment, and as a result, you often rely on witness evidence. Their word against yours is often what this boils down to.

The connection between the discriminatory ground and the alleged discriminatory acts is not to be established by way of motive or intention but rather from objective facts that suggest or infer discrimination.

“A person with a disability may suffer discrimination not because they are disabled per se, but because they are perceived, because of their disability, to be less capable or less dependable than a person without a disability. The Court must always be alert to the possibility of unconscious or inadvertent discrimination, and mere denials of a discrimination motive, in the absence of independent corroboration, must be cautiously approached.”

It is well accepted that there is a broad range of circumstances in which direct discrimination can arise in the conditions of your employment.

In An Employee v. A Broadcasting Company [2012] ELR 88, direct discrimination on the ground of disability was found to have occurred in relation to the Claimant’s assignment of roles within the Respondent Company.

In An Employee (Mr O v. An Employer (No. 2) [2005] ELR 132, the Labour Court found that the Employer had failed to treat the Employee sympathetically upon his return to work from a psychiatric illness and was instead intent on making his working life difficult. The Labour Court upheld the Claimant’s claim for constructive dismissal, despite the Claimant having never raised the Respondent’s grievance procedure.

SCOPE OF PROHIBITED DISCRIMINATION

The scope of prohibited discrimination is widely drawn and encompasses every stage of employment. Matters other than remuneration may include conditions of employment.

An employer can be taken to discriminate against an employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer that person the same terms of employment, the same working conditions and the same treatment in relation to overtime, shift work, short-time, transfers, layoffs, redundancies, dismissals and disciplinary measures as those offered to someone else in materially similar circumstances.

In Toker Developments Ltd V Edgars Grods EDA10, the mere fact of a difference in status (in this case, race) and the difference in treatment is insufficient to shift the burden of proof. Therefore there is a requirement to demonstrate actual discrimination.

“it would clearly be impermissible for the court to reach conclusions of facts based upon mere supposition or speculation”

To succeed, a claimant must be able to produce some significant evidence and not mere supposition, speculation or conjecture (assumptions) to allow the court to draw an inference that persons of different races or nationalities were or would be treated more favourably.

In the Toker case, the court held;

“it is settled law that in cases of equal treatment, a hypothetical comparator can be relied upon but only where there is some evidential basis upon which it could be concluded that such comparator would have been treated more favourably in the circumstances of the particular case.”

The mere fact of a different status, in this case, race and a difference in treatment, is insufficient to shift the probative burden. In Melbury Developments V Valpeters, it was submitted that the Claimant was treated badly by the respondent, and the court was invited to infer that he was treated that way because of his race. Such an inference could only be drawn with evidence of some weight from which it could be concluded that persons of a different race or nationality would be treated more favourably.

Furthermore, in the above case, the Court confirmed as follows;