Burden of Proof in Employment Equality cases
This issue was addressed in the case of Microsoft Ireland and Shaaban EDA 2016.
The Court in this case set out the law clearly.
The Burden of Proof is set out in Section 85A(1) of the Act.
The Court then pointed out that in its determination in Southern Health Board -v- Mitchel 2001 ELR 201, the Court considered the extent of the evidential burden imposed by Section 85A of the Act that 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 indicated that a claimant must prove, on the balance of probabilities, the primary facts on which they rely on 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’’
The Court pointed out that if follows that a complainant has to establish both the primary facts of which he or she relies and also that those facts are of sufficient evidential significance to raise an inference of discrimination.
The Court quoted the case of Cork City Council -v- McCarthy EDA 21/2008 where the Court stated in this regard;
‘‘The type of range of facts which may be relied upon by a complainant may very significantly from case to case. The law provides that the probative burden shift where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicated that where the primary facts alleged are proved it remains for the Court to decide if the inference of 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’’.
The Court also helpfully pointed out that in the case of Melbury Developments Limited -v- Valpeters 2010 ELR 64, 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’’.
It is a very useful restatement of the law by the Court.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.