1. Introduction

Section 85A of the Employment Equality Acts 1998 to 2015 establishes a shifting burden of proof in discrimination complaints. The complainant must first establish a prima facie case of discrimination, after which the burden shifts to the respondent to rebut the inference.

The leading authority on the application of Section 85A is the Labour Court determination in Mitchell v Southern Health Board [2001] ELR 201. This article considers the Mitchell test, how it is applied in practice by the WRC, and the evidential thresholds that complainants and respondents must meet.

2. Legislation and Case Law

Section 85A(1) of the Acts provides that where in any proceedings 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.

In Mitchell v Southern Health Board, the Labour Court formulated the test in three parts: (a) the complainant must establish primary facts; (b) those facts must be of sufficient significance to raise a presumption of discrimination; and (c) only then does the burden shift to the respondent. Mere assertion or speculation is insufficient.

Section 85A reflects Article 10 of Directive 2000/78/EC and Article 19 of Directive 2006/54/EC, which require Member States to ensure that the burden of proof shifts to the respondent in discrimination cases.

In Valpeters v Melbury Developments [2010] ELR 64, the Labour Court confirmed that the primary facts must be of sufficient probative value to enable an inference of discrimination to be drawn. A complainant cannot simply rely on the existence of a protected characteristic and an adverse outcome. 

3. Decision

The WRC will scrutinise the primary facts relied upon by the complainant. Examples of facts that may shift the burden include a marked statistical pattern, contemporaneous remarks suggesting bias, departures from standard procedure, or a less favourable outcome compared with an appropriate comparator.

Once the burden shifts, the respondent must provide a credible non-discriminatory explanation for the treatment complained of. A vague or shifting explanation will rarely discharge the burden.

Where the respondent fails to rebut the inference, the WRC may award compensation up to two years’ remuneration under Section 82(4).

4. Takeaway

Employers should retain contemporaneous records of decisions affecting employees, particularly recruitment, promotion, performance management and disciplinary decisions. The ability to produce a clear paper trail is often determinative in equality complaints.

Complainants should focus on identifying the specific facts that give rise to an inference of discrimination, rather than asserting discrimination in general terms. Statistical evidence, comparator evidence and contemporaneous communications carry particular weight.

5. Further information

This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.

6. About Crushell & Co

Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.

We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.

Connect: @CrushellLaw or www.crushell.ie