Through the looking glass
If representing a client in an indirect discrimination case in Ireland, resources for lawyers can be extremely scarce. Siobhan Lydon shares the benefit of recent experience
The nine grounds for discrimination in Ireland – gender, civil status, family status, sexual orientation, religion, age, disability, race, and membership of the Traveller community – were introduced in what is now section 8 of the Employment Equality Act 1998.
Women are more likely to experience discrimination on multiple grounds.
Indirect discrimination was also made illegal on foot of EU directives. To facilitate such cases, section 85A was introduced on foot of the 2006 ‘Recast’ Directive. Once a prima facie case has been established by the complainant, the respondent may prove that they did not discriminate or successfully use the one defence possible.
The reason for this flip is the near impossibility of the complainant demonstrating the case, given the imbalance between parties.
Very limited exceptions were included per sections 25-27. Section 24 also allows employers to engage in positive actions.
The Employment Equality Acts 1998-2015 and, in particular, section 6(1) defines discrimination.
Preparing a case
The test for direct discrimination is not complex. The complainant has a protected characteristic; they were treated less favourably than somebody else (a comparator); and that treatment was directly linked to the characteristic at issue.
Comparators further to section 28 of the Employment Equality Acts 1998-2015 can be identified in theory or as specific people, depending on the statistics/situation involved. In the case of a competition for employment, the comparator is usually the person(s) appointed.
The test is the ‘balance of probabilities’ – each side presents its case. Direct discrimination has no defence, as it cannot be legally justified.
Indirect discrimination
The test for indirect discrimination is more complex because it is more subtle in practice. Most employers only record data regarding age/gender of applicants.
If no data regarding the characteristic at issue (race, for example) was gathered during the process at issue, the case regarding discrimination will be difficult to establish.
On the other hand, many people would be uncomfortable providing such information for fear it would result in elimination from the competition.
The legal test is:
- The complainant must establish a prima facie case. This is more than res ipsa locutor [‘the thing speaks for itself’] and might well be difficult to establish.
- The respondent can use the defence allowed by section 22, that their restriction was objectively justified by a legitimate aim and the means of achieving that aim are proportionate and necessary – that is, that they discriminated as little as possible.
Section 85A of the Employment Equality Act 1998 sets out the burden of proof that applies. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination.
If that succeeds, then, and only then, is it for the respondent to prove the contrary (see Teresa Mitchell v Southern Health Board).
PCP and evidence
The ‘provision, criteria and practice’ (PCP) is whatever has been identified as the criteria working as a barrier to the complainant (such as height, use of the Irish language, etc). In order for the complainant to make a prima facie case, they must drill into this PCP.
Documentary evidence would be the first place to begin:
- Previous WRC/Labour Court cases might offer insight into the industry culture, if not specifically on this PCP/employer.
- Freedom of information/data-protection requests – data might be stored in a number of locations, and it’s likely that several requests will be required to obtain evidence or confirmation that no evidence exists. Requests regarding the origins of the PCP/reviews would be essential.
- If the employer is part of the public sector, then Dáil and local authority questions could yield useful information not otherwise in the public domain.
- Legislation/regulations specifically relating to this industry.
- Budget/employment or other reports publicly available, perhaps, from the ESRI (see www.esri.ie/research-areas).
- Cross jurisdictional industry analysis – for example, what are the PCPs in the UK? How has this industry in the USA managed a similar problem? Codes of practice?
- Will any related union or organisations related to the protected class assist?
- EU/UN reports on various areas of discrimination, such as the European Institute for Gender Equality (see eige.europa.eu).
- Has the Irish Human Rights and Equality Commission worked in the area?
- Case law: the Workplace Relations Commission (WRC) has provided a list of cases that have found favour in the past.
Proportionality
A body of EU cases relate to employers that only provide benefits (such as pensions/sick leave, etc) to full-time employees, most of whom were men, whereas all of the part-time employees were women.
There are also groups of cases relating to firearms/armed forces, where it was deemed that women were automatically disqualified from being hired.
Johnston v Chief Constable of the RUC centred on an RUC rule that allowed male officers access to firearms, but not their female-officer counterparts.
An industrial tribunal posed a number of questions as to how the State might balance gender equality with public safety. This is relevant when examining the question of proportionality.
R v Secretary of State for Employment held that no social policy could contravene the principle of equal treatment.
Statistics
An Eastern European cluster of cases (DH and Others and Corsus and others) examined matters concerning statistics, and there is precedent for the argument that indirect discrimination may be proved without statistical evidence.
The 2014 joint report from the European Commission to the parliament and council on the application of Council Directive 2000/43/EC (Employment Equality Directive) noted that “the first report ‘raised concerns that the scarcity of ethnic data in most member states might hinder proper monitoring of the application of European Community legislation’.
The situation is still essentially unchanged and is relevant to both directives. This problem has been flagged by many respondents (national equality bodies, FRA [EU Agency for Fundamental Rights], and NGOs), and the commission shares their concerns.”
Tests
In Barton v Investec Henderson Crosthwaite Securities Ltd (a UK case), the Employment Appeal Tribunal upheld Ms Barton’s appeal and offered guidance about how EU legislation applies in respect of the burden of proof in sex-discrimination cases.
The employer had to prove that:
- There were objective reasons for the differential,
- They were unrelated to gender,
- They corresponded to a real need on the part of the undertaking,
- They were appropriate to achieving the objective perceived and that it was necessary to that end,
- The difference conformed to the principle of proportionality, and
- That this was the case throughout the period during which the differentials existed.
This was adopted in the landmark 2007 (Irish) Labour Court decision in Dept of Justice, Equality & Law Reform v Civil Public and Services Union (EDA13/2007)
In Cork City Council v McCarthy (EDA 0821, 16 December 2008), the Labour Court stated, as follows, about the burden of proof: “At the initial stage, the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts.
"It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”
However, none of these cases dealt directly with the unique challenges of distinguishing between the physical performances of people by genders or ages.
A 2021 decision by the Supreme Court of India (Nitisha v Union of India) addressed the legal investigation of physical tests. The judgment conceptually foregrounded indirect discrimination as “closely tied” to equality in the Indian context.
This opinion took a contextual look at the history and philosophy involved. The Indian Supreme Court conducted an extensive study of the approach adopted in the USA, UK, South Africa, and Canada.
Five principles were elicited from that study (in paragraphs 66-70 of that decision), adopting the framework from Judge Sandra Fredman’s 1985 opinion in Ontario Human Rights Commission v Simpsons-Sears.
The Indian Supreme Court created a test that is largely similar to legislation in this jurisdiction.
This opinion points out that employers that practice discrimination do so in many areas – not simply in hiring and promotion – such as access to appropriate changing/ showering/toilet facilities, purchase of equipment that fits, maternity policies, etc.
How to render a decision
Unfortunately, in the event of discrimination, there is often dishonesty at play – at a minimum, self-deception by an employer. What should/should not be included in an opinion is important to consider.
The science of the PCP, industry factors, elements specific to the case, retesting opportunities, interoperability, and public policy are all elements that the opinion may not address in full.
Advocate General for Scotland v Brown (otherwise Koren Brown) focused on how a judgement should examine such a physical test, and a large number of discrimination-related cases were reviewed in that context.
The judgement also was concerned with “how the decision, based on the test above, should be rendered”?
Meek v City of Birmingham District Council was considered the standard. The key takeaway point regarding Meek is that a tribunal does not have to give reasons why it rejected alternatives to the facts found, provided it gives reasons for why it found the facts that it did.
In Koren Brown, the opinion examined Hardy and Hansons plc v LAX and how best to pierce the deception practised by employers attempting to sidestep the equality legislation.
It is this type of perversity that appear to be a factor of employers’ presentations in indirect discrimination cases.
The court decided that the employer’s test might stand if it is sufficient that the same aim could not be achieved by less discriminatory means.
In Koren Brown, the public-sector employer claimed that any change in their own hiring standards must be approved by other autonomous organisations for the purposes of ‘interoperability’. This is not an original technique to muddy the waters – what might be called the ‘Sir Humphrey Appleby inertia defence’.
What’s next?
The defence as set out in section 22(b) of the Employment Equality Acts requires proving that an apparently neutral policy, criteria, or practice is objectively justified by a legitimate aim, and that the means used to achieve it are proportionate and necessary.
To adopt this defence, it is likely that expert witnesses should be engaged and proof offered.
The concept of ‘proportion’ is one that falls within the law of equity, so such maxims might also be raised. Evidence of a prima facie case and legitimate aims rest on an understanding of the industry.
Regarding physical testing, part of the problem is perception – the male body is regarded as ‘standard’, and women who best match that standard are considered compliant. This pervades medical research, automotive testing, and workplace design.
The high barrier to entry in taking a discrimination action can be lowered. The learning curve for legal professionals, the level of research involved, and expert witnesses together create an insurmountable obstacle to justice for the ordinary complainant.
This article was written to help lower that barrier to entry.
Siobhan Lydon is a solicitor at CW Ashe & Co, Solicitors, South Square, Macroom, Co Cork.