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:

  1. There was no difference between Common law and Civil law jurisdictions in respect of the questions put.
  2. 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 was denied access to training on the grounds of his sex, or believes he was discriminated on the grounds of his sex.
  3. There was no automatic right for the Complainant to receive information in respect of the applications of the other candidates or the scoring systems etc. in order to assist him to prove that the burden of proof should shift. It is for the national court to decide whether or not there is a risk that refusal of disclosure by the Respondent "could risk compromising" the objective of Directive 97/80 (the shifting of the burden of proof).
  4. If a national court were to find that a refusal of disclosure by the Respondent could risk compromising the intended objective of Directive 97/80, in particular Article 4(1) (the burden shifting mechanism), then that court would further have to consider whether that entitlement to access was affected by European Union law relating to confidentiality. This of course would be dependent on the nature of the disclosure.

Conclusion
Although this decision does not accord an automatic right to interview notes, scoring systems, candidate applications, etc in the case of a challenge on sex discrimination grounds, it is clear that it is open to the Equality Tribunal, the Circuit Court or the High Court to decide that in any given case, the non-disclosure of this information could lead to a risk that Article 4(1) (the burden shift mechanism) could be deprived of its effectiveness and the objective of the Directive thereby compromised, and that in such circumstances the information sought should be disclosed.

This decision very much puts the issue back in the hands of the local courts, but it appears that a window has now been opened whereby claimants are likely to plead that non-disclosure of this documentation risks compromising the objective pursued by the Directive and of depriving Article 4(1) of its effectiveness in the particular case. It is quite possible therefore that there may be a number of successful applications for such information arising out of this case.

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