FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : TESCO IRELAND - AND - SWIFT (REPRESENTED BY MANDATE) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Pierce Worker Member: Mr O'Neill |
1. Appeal under section 83 of The Employment Equality Act, 1998, Dec-E2005-003.
BACKGROUND:
2. The Labour Court investigated the above matter on the 29th July, 2005. The Court's determination is as follows:
DETERMINATION:
This is an appeal by the Union against a decision of an Equality Officer's DEC-E-2005/003. It is alleged that the complainant was discriminated against in terms of Section 2(a), of the Employment Equality Act, 1977, and in contravention of Section 3 of the Act when the respondent failed to facilitate her request for reduced working hours following the expiry of her maternity leave. The Equality Officer, in his decision dated 19th January 2005, found that the worker was not discriminated against contrary to the terms of the Employment Equality Act, 1977.
The complainant’s case
The Union on behalf of the complainant claims that she has been discriminated against under section 2(a) of the Employment Equality Act, 1977, on the grounds of her gender. She was employed from 12th September 1994 to 8th October 1998.
On behalf of the complainant, the Union stated that Ms. Swift was classified by the respondent as a part time worker. However, she actually worked longer hours than the hours agreed with the Union for part-time workers of 18 to 30 hours. The hours she worked were marginally short of full time hours – her average hours during the tax year 1997 to 1998 were approximately 38 hours per week and for the tax year 1998 to 1999 were marginally over 38 hours per week.
The Union stated that prior to the commencement of her maternity leave, Ms. Swift requested shorter working hours to commence on her return from maternity leave, and was informed by Ms. Fitzgerald, her supervisor, that the matter would be dealt with on her return. Three weeks prior to her due date of return, Ms. Swift contacted her supervisor about the matter as she wished to finalise her child minding arrangements. At that time Ms. Swift submitted a request for 2 – 3 days work per week, Monday, Tuesday and Wednesday, from 10am to 4pm. Ms. Fitzgerald informed that she could only be facilitated with a minimum of 18 hours per week as this was the minimum agreed for part-time workers and therefore offered her a reduced hour pattern of 3 days - Monday, Tuesday and Wednesday, from 10am to 5pm. Ms. Swift was unhappy with this arrangement as she wished to work no more than 15 hours per week.
A number of days later, Ms. Swift called to the store and spoke to Ms. Fitzgerald about her dissatisfaction with the reduced hours offered. Ms Swift alleges that Ms. Fitzgerald informed her that if she was not satisfied then she would have to leave the employment. Ms. Swift informed the Court she was left with no option but to resign her employment and accordingly did so. Ms. Swift’s baby was ill in hospital at this time. The Union subsequently wrote to the respondent, on 3rd November 1998 indicating that it viewed the respondent’s refusal to facilitate the alternative working arrangement requested by Ms. Swift following the birth of her child as an act of discrimination on the grounds of sex. A claim under the Employment Equality Act 1977 was made on 27th November 1998.
In support of its contention, the Union referred to arrangements made in similar circumstances, whereby the respondent had facilitated reduced hours for other female employees following maternity leave. The Union supplied a list of 18 names to the Equality Officers.
Furthermore, the Union submitted that the respondent had not produced any documentary evidence to support its case. It contends that this failure displayed a lack of transparency on the respondent’s part and accordingly its version of events cannot be relied upon.In support of its contention, the Union citedEnderby v Frenchay Health Authority [(1993)ECRI – 5535,5573], theCommission v France [318/86 1988 ECR 3559]andDanfoss [109/99 (1989) 3199].
It submitted that the Court should take this into account in its determination. The lack of detailed information related specifically to the following:
•details of Ms. Swift’s working hours prior to maternity leave;
•details of the request made to change her working hours prior to her taking maternity leave;
•details of the date of her resignation,
- and
The respondent’s case
The respondent does not accept that it discriminated against the complainant. It contended that the reduced working hours were offered to Ms. Swift were in line with an agreement between Tesco and Mandate providing for a working week of between 18 and 30 hours for part-time staff employed on flexible contract working. The respondent does not accept the Union’s allegation that its failure to agree a further working week for Ms. Swift on her return from maternity leave was in any way related to her gender and referred to many examples of females who availed of similar reduced hours in similar circumstances in the past.
The respondent stated that in March 1998, prior to the commencement of her maternity leave, Ms. Swift submitted a request that due to her expected financial needs when the baby arrived, she wished to be employed as a full time worker. This request was acceded to. However, once the baby was born this request changed, due to the baby’s illness and she then sought reduced working hours. The Union disputed this assertion.
The representative for the Company, Ms. McCarthy indicated that Ms. Fitzgerald, the complainant’s supervisor at the time, informed the complainant that the Company was willing to facilitate her with a reduction in her hours, however, as the requested hours proposed did not suit the respondent’s requirements, she was offered alternative hours - Monday, Tuesday and Wednesday per week, from 10am to 5pm, a minimum of 18 hours per week.Due to the stipulation provided by the Tesco/Mandate agreement of 18 hours minimum for part-time staff, it could not accede to her request for a 10am to 4 pm arrangement.
Ms. McCarthy also explained that this offer was in line with Tesco’s policy on Flexible Working Arrangements whereby female staff are facilitated with reduced working arrangements on return from maternity leave. In support of her contention she referred to the evidence produced by the Union at the Equality Officer’s hearing where the Union provided names of 18 female staff who had availed of such arrangements. All 18 staff had availed of hours a minimum of 18 per week.
Ms. McCarthy accepted the Union’s contention that Ms. Swift was unable to avail of a formal meeting to discuss her return to work request with management. However, on two separate occasions, 25th September and 1st October 1998, alternative working arrangements were offered to Ms. Swift, these alternatives were as follows
-work from 10.00am – 5.00pm (3 days),
- or
The Company further stated that in October, 2001 Ms. Swift reapplied for a position in the Company and was successful in her application. On her application form she stated that:
- “I am interested in working with the Company as I have worked with you before and I took a career break to look after my child so I would like to return”.
The Law
The Court must consider whether the refusal to facilitate the complainant in her request to work reduced hours 10.00 am to 4.00 pm, 3 days per week following her maternity leave, was discriminatory in terms of section 2(a) or section 3 of the 1977 Act. Section 2 (a) states :-
- For the purposes of this Act, discrimination shall be taken to occur in any of the following cases -
- (a) where because of his sex a person is treated less favourably than a person of the other sex.
Burden of Proof:
A complainant making an allegation under the Act must presentprima facieevidence of the allegation. The Court is of the view that the correct test for deciding if the burden of proof shifts to the respondent in this case is that formulated by this Court in the case ofSouthern Health Board v Dr. Theresa Mitchell [2001] ELR 201. Thus, it is for the complainant to prove, on the balance of probabilities, the primary facts on which she relies in making her case of discrimination. It is then a matter for the Court to decide if those facts are of sufficient significance to raise a presumption of discrimination. If the Court is so satisfied the onus is shifted to the respondent to prove, on the same standard, that there has been no infringement of the principle of equal treatment.
The Union asserted that the respondent did not make reasonable efforts to accommodate Ms. Swift in her return to work following her maternity leave. The onus of establishing this fact rests with the complainant.
Courts Findings
In her evidence to the Court Ms. Swift said that she wished to work 2 or 3 days per week, Mondays, Tuesdays, Wednesdays, from 10.00 am to 4.00 pm. She claims that the offer made to her by the Company - Mondays, Tuesdays, Wednesdays, from 10.00 am to 5.00 pm, did not suit her as her mother-in-law intended to look after the baby and that it would be unfair to expected her mother-in-law to mind the baby until after Ms. Swift finished at 5.00pm.
The complainant told the Court that she could not recollect precisely the events of October 1998 but was clear that management had said that if she did not accept this arrangement she had no alternative but to resign.
The question the Court must ask therefore is whether Ms Swift has been directly discriminated against.
The European Court of Justice in the case ofJulia Schnorbus V Land-Hessen C79/99has stated that direct discrimination can only arise where the difference in treatment is complained of is based on criterion which is explicitly that of sex or is necessarily linked to a characteristic indissocable from that of sex. As this Court has stated in the case ofTesco Ireland and A Worker DEE014,while the responsibility for child care may in practice fall to a disproportionate degree on women, it cannot be said to be a characteristic indissociable from a woman's gender.
The Court cannot therefore accept the complainant's complaint is one of direct discrimination
The question as to whether the respondents indirectly discriminated against the complainant must then arise; indirect discrimination occurs when an apparently neutral term or condition of employment in actual fact leads to one sex being treated more unfavourably than the next.
It should be noted that the complainant is not stating that the agreement entered into by the respondent and the Union whereby pro-rata part-time workers are required to work a minimum of 18 hours per week is discriminatory. Her allegation is that in her particular case the respondents did not make sufficient effort to accommodate her request to work a 15 hour week as opposed to the 18 hour week set out in the agreement.
For the complainant to succeed however she must produce evidence that the failure to accommodate her constituted discrimination on the grounds of her gender. No such evidence was proffered by her. She did advance evidence to the effect that some 18 co-workers had availed of the opportunity for part-time work after returning from maternity leave but this appeared to bolster the respondent's contention that where possible it did allow staff to reduce their hours after returning from maternity leave subject to the overriding consideration that they could not, following the agreement, reduce them below 18 hours per week.
In addition the complainant citedNUI Galway v Burke DEE 027, where it was claimed that the University did not make enough effort to facilitate a request by a female member of staff, to change from a full time working arrangement to a job sharing arrangement in order to accommodate her family commitments. InNUI Galway, the Labour Court held that each case must be considered on its merits and the main factor in deciding whether such a case amounts to indirect discrimination is to decide whether the employer acted reasonably when considering a request to transfer to part-time work, or had a proper policy in place for dealing with requests to transfer to part-time work.
The Court does not accept that the employer must automatically agree to the complainant’s request for a maximum of 15 hours work per week. However, there is an obligation on the employer to give reasonable consideration to any such requests.
In considering whether the Company acted reasonably, the Court has taken the following into account: -
-the Court is satisfied that alternative working arrangements were offered to the complainant in response to her request;-the reduced hours offered were in line with the agreement between Tesco and Mandate;
-the offer made to work 18 hours on Mondays, Tuesdays and Wednesdays was not dissimilar to the hours requested by the complainant and furthermore, substantial grounds were not proffered by the complainant as to the unsuitability of these hours;
-the Company provided similar arrangements to other females in similar circumstances in the past;
-neither the complainant nor her Union appealed the supervisor’s decision to higher management at the time and no meetings were sought to discuss the situation.
The Court is of the view that in the context of the agreement between Tesco and Mandate, the position adopted by the supervisor when she informed the complainant of the limit of 18 hours is understandable. Taking all of these factors into account, the Court is of the view that the Company made reasonable efforts to accommodate Ms. Swift in her return to work following maternity leave.
The Court is satisfied that insufficient evidence has been produced to indicate that the failure to agree on a reduced working hours pattern following maternity leave constituted discrimination on the grounds of gender. Therefore, the Court finds that the Union has not established facts from which aprima faciecase of discrimination can be inferred.
Determination
The Court finds that the complainant was not discriminated against under Section 2(a) or of Section 3 of the 1977 Act.
The decision of the Equality Officer is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
23rd_August, 2005______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.