WHAT THE LAW TECHNICALLY SAYS (THE BORING BIT)
Section 6(2) of the Employment Equality Acts provides that as between any two persons, the discriminatory grounds are inter-alia, they are of different race, colour, nationality or ethnic or national origins.
The Labour court in the case of Campbell Catering Ltd and Rasaq Det EED048 has stated:
“It is clear that many non-national workers encounter special difficulties in employment arising from a lack of knowledge concerning statutory and contractual employment rights together with differences of language and culture”.
In bringing a complaint a complainant must, firstly establish facts from which it can be presumed that he was subjected to discriminatory treatment on the grounds of his race and it is only when he was done that to the satisfaction of the adjudication officer that the burden shifts to the employer to prove otherwise. There must be a difference in treatment and a difference in Race for there to be evidence of discrimination.
What must be decided by an Equality Officer or the Labour Court is whether a Complainant was less favourably treated in relation to his conditions of employment and whether that was because of his race.
The burden of proof provides that should a complainant establish facts by which it may be presumed that he suffered discrimination, it is for the respondent to prove the contrary.
“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”
The complainant must first establish facts from which discrimination may be inferred. They must be established as facts on credible evidence. Mere speculation, assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.
In Melbury Developments V Valpeters it was submitted that the complainant was treated badly by the respondent and the court was invited to infer that he was so treated because of his race. Such an inference could only be drawn with evidence of some weight from which could be concluded that persons of a different race or nationality were or would be treated more favourably. The Court also confirmed that an approach requiring the respondent to prove that others were treated similarly would amount to placing the entire probative burden on the spot.
Where there are actual comparators, the real as opposed to a hypothetical comparator is required. A Court cannot and should not find in favour of the Complainant on the basis of mere speculation.
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 in itself insufficient to shift the probative burden of proof and 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”. This was also confirmed in J.Ryan Haulage V Kostas Avizinis and Madarassy V Nomura International plc 2007 IRLR 246.
In order to succeed in this contention, a complainant must be able to produce some significant evidence and not mere supposition to allow the court to draw an inference that persons of different race or nationality were or would be treated more favourably.
The Labour court has indicated previously that the failure to apply the appropriate terms and conditions of employment as stipulated by the REA is by no means confined to non-national workers. 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 in itself insufficient to shift the probative burden.
The Labour court in the case of the Southern Health Board vs Dr Teresa Mitchell considered the extent of the evidential burden which the claimant must discharge before a prima facie case of discrimination on grounds of sex can be made out.
It stated that the claimant must:
“establish facts from which it can 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 was no infringement of the principle of equal treatment.”
The Labour Court went on to hold that a prima facie case of discrimination is established if the Complainant succeeds in discharging that evidential burden. If the complainant succeeds the Respondent must prove that he or she was not discriminated against on those grounds.
Subsequently, the Labour court stated in relation to the burden of proof in cases brought on the race and religion grounds that it is now accepted practice of the Court in all cases involved in discrimination the probative burden will shift to the Respondent in circumstances where the complainant establishes a prima facie case of discrimination.
The test normally used to determine when and in what circumstances the burden of proof should the respondent is formulated in the case of Mitchell Vs Southern Health Board 2001 ELR 201.
This test provides that the Complainant must first prove the primary facts upon which they rely in asserting discrimination.
If those facts are proved and they are regarded by the Court as of sufficient significance to raise an inference of discrimination, the burden of proving the absence of discrimination shifts to the respondent.
This test is based on the wording of the European Communities (Burden of Proof in Gender Discrimination Cases) Regulations 2001. These regulations provide that the probative burden shifts when the Complainant establishes the facts from which discrimination may be presumed.
The wording used in the regulations which is derived from direct 97/80 EC (the Burden of Proof Directive) is now replicated in Article 8 of Council Directive 2000/43 on equal treatment between persons irrespective of race or ethnic origin.
Following the decision in 58 Named Complainants Vs Good Concrete Ltd there is a requirement to furnish a foreign national with a Health and Safety statement. This is particularly so where a Claimant is working in an inherently dangerous business. There is in any case a statutory requirement to furnish individuals with health and safety documentation.
In the case of a foreign national who would not be conversant with Irish health and safety law, it is now contended that there is an obligation to provide an employee with a health and safety statement and in failing to provide same to him in a language likely to be understood by him amounts to discrimination.
In relation to the obligation to ensure all health and safety instructions were communicated international language of the applicant, the court has recently confirmed in Clare Civil Engineering V Ostojic and Others that while health and safety instructions of his important, the court can be satisfied that such instruction was generally imparted to all workers for the well-being on site and that where a complainant would have reasonable experience from previous work practices whether in Ireland or elsewhere then they will have reasonably attended to their obligations.