Background:

The Appellant brought an appeal of the decision of the Adjudication Officer (AO) of the Workplace Relations Commission (WRC) to the Labour Court following a ruling the Appellant had not been discriminated against on the gender ground and he had not made out a complaint of sexual harassment. The Appellant submitted he had been sexually harassed on a training course which he attended at the commencement of his employment. He claimed he was dismissed on the fourth day of his employment when he attempted to make the Respondent aware of the difficulties, he had encountered on the training course. Those difficulties included sexual harassment and what he considered to be an aggressive and challenging approach towards him.

The Appellant commenced employment with the Respondent on 28th September 2020 and attended a training course of the Respondent on that date. The Appellant submitted that the training course he attended was very unprofessional and toxic.  He contended he attempted to highlight the inappropriate behaviour to the Respondent and advise an incident had occurred between him and the trainer earlier that day. The Appellant submitted that the Line Manager became agitated on the phone and informed the Appellant that his employment was terminated.

The Appellant contended that he had been sexually harassed and victimised because of having attempted to report the sexual harassment. The form of victimisation was his dismissal.

The Respondent submitted the Appellant had not made a complaint of victimisation or discriminatory dismissal to the WRC at first instance and therefore this could not now be permitted to expand his complaint to include such allegations. The Respondent submitted the Appellant had been dismissed after four days of employment due to his disruptive and argumentative behaviour during the induction programme provided by the Respondent.

The Labour Court considered the determination of Southern Health Board v Mitchell. It follows that a Complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination.

The Labour Court highlighted that neither party placed evidence before the Court as to the events which was submitted amounted to sexual harassment of the Appellant. The Respondent did not contest in evidence or submissions that these events had occurred and did not concede that they had occurred. Similarly, the Labour Court was not provided with evidence to assist it in determining the disputed facts of the phone call between the Appellant and the Respondent Line Manager on the 1st October 2020.

The Labour Court concluded that the Appellant, on the balance of probability, had established facts from which an inference of discrimination can be drawn. The Court, having been provided  with no evidence from any person directly involved in either the training programme or the decision to dismiss the Appellant, concluded that the Respondent did not discharge the burden of proof resting upon it to prove that discrimination has not occurred. The Labour Court decided that the Appellant was discriminated against and overturned the decision of the AO.

Outcome:

The Labour Court ordered the Respondent to pay the Appellant the sum of €10,000.00 compensation for breaches of the Employment Equality Act.

Practical Guidance for Employers: 

The initial burden of proof in a claim of discrimination rests on the Complainant/Appellant. The Employment Equality Act provides that where facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.  Where a prima facie case of discrimination is established the onus or burden of proof shifts to the Respondent to prove the absence of discrimination.

The full case is here:
https://www.workplacerelations.ie/wrc/en/cases/2023/february/eda235.html