Employment Equality Act Claims – The Burden Of Proof*

Employment Equality Act Claims – The Burden Of Proof*

This issue arose in case ADJ-00027749.

The Adjudication Officer in this case set out some important decisions in relation to the Burden of Proof.

The Adjudication Officer pointed out that the Labour Court had stated that in the case of Southern Health Board –v- Mitchell DEE011 (2001) ELR201 that;

“The first requirement is that the complainant must establish facts from which it may be presumed that the principle of equal treatment had not been applied to them. This indicates that a complainant 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 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 was no infringement of the principle of equal treatment”.

The Adjudication Officer also quoted the case of Arturs Valpeters –v- Melbury Developments Limited 2010 21ELR64 where the Labour Court stated in respect of Section 85 that;

“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 must be of significant significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation of assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be shown. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits no exceptions to that evidential rule”.

The case of Margetts –v- Graham Anthony & Company Limited EDA038 is one where the evidential burden which must be discharged before a prima facie case of discrimination can be said to have been established was 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 probability, that the act of discrimination has occurred”.

The Adjudication Officer set out that where facts are established from which discrimination may be inferred it is then for the respondent employer to prove the absence of discrimination.

It is helpful that the Adjudication Officer has set out this in some detail.

If you require further information please phone us on 01 – 9695781 or e-mail us at info@grogansolicitors.ie. For further information you will find guides on our website www.grogansolicitors.ie

*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.

Richard Grogan

Author Richard Grogan

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