Right To Information In Sex Discrimination Cases

Originally published July 2011

In a decision issued on 21 July, the European Court of Justice has held that although the burden of proof can shift from the Respondent to the Claimant in circumstances where the Claimant can show that there are facts from which it may be presumed that there has been direct or indirect discrimination, and thereafter it is up to the Respondent to prove that there has been no breach of the principle of equal treatment (i.e. burden shifting), the Claimant has no automatic right to information from the Respondent to enable it to establish these facts. The Claimant in this case complained that without release of information showing the marks received by other candidates at interview, he would not be in a position to show that there was, prima facie, facts from which it could be presumed that there was direct or indirect discrimination. Accordingly Mr Kelly brought his claim to the Irish Circuit Court, after the Irish Equality Tribunal decided that he had failed to establish prima facie discrimination on the grounds of sex. As part of his application to the Irish Circuit Court, Mr Kelly sought under Order 57A Rule 6(6) of the Circuit Court Rules copies of certain applications, and scoring sheets of the other candidates in the process. The Circuit Court refused to make this order, and accordingly Mr Kelly appealed that order to the High Court. The High Court held against Mr Kelly and concluded that under Irish domestic law, UCD did not have to disclose the documents he had requested in un-redacted form. The court decided in the light of its refusal to grant the order sought, to refer certain questions to the European Court of Justice. These questions in essence were whether or not there was any obligation on UCD to provide copies of the application forms and scoring sheets of the candidates to Mr Kelly, and if there was such an obligation, was such obligation affected by the operation of national and European laws relating to confidentiality. Finally, the court asked whether or not there was any difference as between Civil law and Common law jurisdictions in this regard. The European Court of Justice made the following ruling:

There was no difference between Common law and Civil law jurisdictions in respect of the questions put. There was no right under either Article 4 of Directive 76/2007 or Article 1(3) of Directive 2002/73 requiring information to be provided to the Complainant because he either believes that he...