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Burden of proof on Employees in discrimination case

Fact:

The Complainant worked in the shop of the respondent on a fixed-term contract. The Complainants contract was renewed twice, however on the third occasion the Respondent decided not to renew the contract. The Complainant claimed that the respondent decided not renew the complainant’s contract after learning of the complainant’s sight impairment.

The Respondent asked a series of questions in the interview with the Complainant regarding the Complainant’s eye sight. Following this conversation the complainant’s contract as a host in the Respondent’s shop was extended by 6 months. This contract was again extended by 10 months at a later date.

The Complainant applied for a position with the Respondent that was advertised internally and for which the Complainant had the requisite experience. He was once again questioned about his eyesight. After his application was lodged, a new requirement to drive was added to the job description. The Complainant was called by the Respondent and told that he should not bother applying for the new job. When another job opportunity arose, the Respondent again questioned the Complainant’s capabilities due to his sight impairment. The Respondent did not offer the Complainant an alternative job. The Complainant was called to a meeting with Mr A where he was told his job was not going to be renewed. The Complainant argued that the refusal to consider him for job roles was in breach of his right to fair and equal treatment. The Complainant argued that he should have been considered for the other positions and also submitted that he had never received any feedback on issues throughout his work and that his termination came as a surprise.

Held:

Under the Employment Equality Act 1998-2007, that in a case in which a claimant submits that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary. Thus, the Complainant must establish facts upon which a claim of discrimination is grounded.

The Adjudicator found that the Complainant’s sight impairment came within the definition of ‘disability’. The Adjudicator also notes that although the Complainant had made no requests to the Respondent to accommodate for his disability, the Respondent allowed the Complainant delayed start times and travelling expenses to facilitate the Complainant.

The Adjudicator moved on to discuss the issue of comparators in the furtherance of the Complainants claim. No comparators were provided by the Complainant to illustrate that the complainant was treated less favourably than another employee. The Adjudicator held that the Respondent’s decision to include the requirement of a driving license in a job description was reasonable, as the job was 60% driving. Evidence suggested that another employee was rejected from the job as they only held a provisional license. Thus, it was held that the comparator was not treated more favourably than the Complainant.

Finally, the Adjudicator addressed the Complainant’s submission that his dismissal was directly related to his poor eyesight as the Complainant contended that the respondent raised the issue of his sight in a manner which he contends was unnecessary. The Adjudicator having reviewed the evidence stated that the two occasions in which the Respondent referred to the Complainant’s eyesight were at points in which deliberation of extensions were being discussed. At both times, the Complainant’s contract was extended, and so this does not illustrate discrimination. The Adjudicator was also satisfied that the Complainants role was actually discontinued and it was therefore not the Complainant’s eyesight that caused termination of employment.

Take away for employers:

The Respondent proved that a person who had only a provisional license was also rejected for the role. And this the Complainant’s case that he was treated less favourably than others was diminished.

https://www.workplacerelations.ie/en/cases/2019/july/%20adj-00012863adj-00012863.html

1st August 2019

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

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