Burden of Proof in Equality Claims*

By October 5, 2021Employment Law

Burden of Proof in Equality Claims*

This issue arose in case ADJ-00026173 being a case of Leah Tierney and Peter Mark Hair Salons Unlimited. The Adjudication Officer in that cases noted that the Labour Court had stated that in the case of Southern Health Board -v- Mitchell 2001 ELR201 that

“The first requirement is that the complainant must establish facts for which it may be presumed that the principle of equal treatment has 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 the 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 the presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principles of equal treatment.”

The Adjudication Officer also quoted the case of Valpeters -v- Melbury Developments where the Court stated that under Section 85 A that

“This requires that the complainant must first establish facts for 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 give sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.”

*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 proportion or percentage of any award or settlement.

Richard Grogan

Author Richard Grogan

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