DEC-E2005-009 Full Case Report

Nine Named Female Employees (Represented by MANDATE) AND Tesco Ireland

1. DISPUTE
   
   1. The dispute concerns a complaint that Tesco Ireland (the respondent) discriminated against nine named female employees within the meaning of Section 2(a) and 2(c) and in contravention of Section 3 of the Employment Equality Act, 1977 in the course of their employment at the respondent’s retail grocery shop.
      
2. BACKGROUND
   
   1. The complainants were employed at the Omni Park, Santry branch of Tesco Ireland which then traded as Crazy Prices. The complainants allege that they were discriminated against because of their gender when they were denied access in 1995 to the temporary Christmas night crew which attracts double pay.
   2. MANDATE referred a complaint to the Labour Court on 12th April, 1996. The Labour Court referred the complaint for investigation by an Equality Officer on 26th April, 1996 and the complaint was assigned to Raymund Walsh, Equality Officer, for investigation and recommendation. MANDATE furnished a submission on 22nd April, 1997. The respondent furnished a response submission on 8th October, 2001. The present complaint was one of a number of complaints brought by MANDATE against Tesco on behalf of various complainants and MANDATE requested that the investigations be suspended while contacts with management aimed at resolving the disputes be pursued. MANDATE indicated on 15th January, 2003 that the present dispute could not be resolved and requested that the investigation be resumed. A hearing took place on 8th June, 2004. Arising from the hearing further material was exchanged between the parties and correspondence ensued up until 7th July, 2004.
      
3. SUMMARY OF THE CLAIMANT’S CASE
   
   
   1. MANDATE in its submission states that “in March, 1996 we received a report suggesting that the temporary, pre-Christmas night-pack appointed in the Omni Park toy store was comprised of males only, thus depriving female employees of the opportunity to avail of double-time payment which goes with such work”. Following correspondence and a meeting with the company MANDATE states that no agreement was possible and “we sought the assistance of the Labour Court on 11th April, 1996” i.e. the date given on MANDATE’s complaint referral under the 1977 Act.
   2. MANDATE states that women employees at Tesco are concentrated on check-out duties and that male workers are employed primarily on the heavier duties of packing shelves. MANDATE goes on to argue that the respondent’s stated policy of keeping the more skilled and experienced check-out staff for day duty during the Christmas period amounts to the segregation of female workers for day duty and male workers for the better paid night work. MANDATE states that the company did not advertise the night work in the toy store but went directly to the staff concerned and offered them double-time night work until the desired numbers were achieved. MANDATE states that in an identical complaint involving another Tesco store (then trading as Power Supermarkets) the Equality Officer found that discrimination had taken place and refers to Fifteen Named Female Employees and Power Supermarkets¹ in this regard.
   3. Subsequent to the hearing the respondent provided a statement signed by a female member of staff stating that she worked the temporary night shift in 1995, 1996 and 1997. MANDATE contests the relevance of this statement and states that this member of staff worked in the main store, not in the toy store which is the subject of the present complaint. MANDATE also states that this member of staff worked on the Health and Beauty section of the main store which involved the packaging and merchandising of cosmetics etc., an area which is seen by Tesco as appropriate for female staff only and serves to reinforce the MANDATE argument in relation to the allocation of duties at Tesco. MANDATE subsequently furnished statements from two of the named complainants stating that they worked in the toy store in 1995 but were not afforded the opportunity to work the night shift. The union shop steward who was present at the hearing recalled that one of the complainants came to him at the time about the night work and that he spoke to the Store Manager and the General Manager at a number of meetings however no record of those meetings was kept. One of the complainants i.e. Ms Mahedy, was also present at the hearing and she states that she was not aware of any notice having been posted about the night crew work as suggested by the respondent .
      
4. SUMMARY OF RESPONDENT’S CASE
   
   1. The respondent states that the complaint referred by MANDATE on behalf of nine named female complainant’s constitutes a class action and is not a valid complaint within the meaning of the 1977 Act. Referring to the decision of Kinlen J. In Verbatim v Duffy and Others², the respondent argues that it is not open to MANDATE to advance a class action in which a discriminatory act is complained of without there being evidence in respect of each individual complainant that an act of discrimination has occurred. The respondent also refers to the Equality Officer’s recommendation in Elaine Johnson and sixty five others and Tesco³ where the Equality Officer found that the individuals named had not satisfied the burden of proof that they were individually discriminated against by the respondent’s actions.
   2. The respondent rejects MANDATE’s contention that discriminatory recruitment practices have led to a situation where checkout staff are predominantly female and merchandising staff are generally male and states that any pattern which may have developed over the years is not unique to Tesco Ireland but is a feature of the retail trade generally. The respondent states that this pattern does not disadvantage any individual or group of staff. With regard to the substantive issue of the alleged discriminatory practice in the selection of staff for the temporary night crew at Christmas, the respondent states that local management selected staff for this duty having regard to the store’s business requirements and to ensure that those staff whose principal function is critical to the day shift remain on day shift. The respondent lists checkout operations, customer services and duties specific to certain departments such as butchery, deli and backstores among those functions critical to the day shift. Given the nature of the night duty i.e. stocking shelves or merchandising, staff primarily involved in merchandising by day are generally most suitable and given that the Christmas period is one of the busiest trading periods, there is a need to have experienced operators on checkouts. The respondent states that it would be particularly difficult at Christmas time to train staff in an area in which they had not previously worked.
   3. The respondent states that all of the staff employed at the Omni Park branch would have been aware of the opportunities available on the temporary night crew yet none of the nine complainants made it known to management that they were interested in the temporary night crew and at no stage was the issue raised with management in accordance with established grievance procedures before the complaint was referred to the Labour Court some four months later. The respondent stated at the hearing that a notice regarding the availability of night work was posted in the store and that a female member of staff was offered and took up the temporary night duty. In a statement furnished through the respondent subsequent to the hearing, this member of staff confirmed that she worked the night shift in 1995, 1996 and 1997. When challenged at the hearing by MANDATE that the notice, if posted, was posted in the main store and not the toy store which was the subject of the complaint, the respondent stated that toy store staff must go to the main store in order to collect their wages and that they would have an opportunity to see the notice there.
      
5. CONCLUSIONS OF THE EQUALITY OFFICER
   
   1. The matter for consideration is whether or not the respondent discriminated against the complainants on the grounds of her gender in terms of Section 2(a) and (c) of the Employment Equality Act, 1977 and contrary to the provisions of Section 3 of that Act. In making my decision I have taken into account all of the evidence, both written and oral, made to me by the parties to the case. Having regard to established employment equality caselaw, it is for the complainants in the first instance to establish prima facie evidence from which a presumption of discrimination can be made.
   2. Insofar as MANDATE has named nine individuals who claim to have been discriminated against and who are parties to the complaint, I accept that the complaint before me constitutes a valid complaint within the meaning of the 1977 Act and is not a ‘class action’ as argued by the respondent.
   3. I note that MANDATE has referred the complaints to the Labour Court under Sections 2(a) and 2(c) of the 1977 Act which state:
      
      “2.- For the purposes of this Act, discrimination shall be taken to occur in any of the following cases -
      
      (a) where by reason of his sex a person is treated less favourably than a person of the other sex
      
      .....
      
      (c) where because of his sex or marital status a person is obliged to comply with a requirement, relating to employment or membership of a body referred to in section 5, which is not an essential requirement for such employment or membership and in respect of which the proportion of persons of the other sex or (as the case may be) of a different marital status but of the same sex able to comply is substantially higher,..”
      
      To succeed under Section 2(a) MANDATE must establish prima facie in relation to each complainant that they have been treated less favourably than a male employee and to succeed under Section 2(c) that they were required to comply with an inessential requirement which a substantially higher proportion of males could comply.
   4. MANDATE has argued that the present complaint is identical to Fifteen Named Female Employees and Power Supermarkets Limited (ibid) and while I would accept that it is in many respects similar, it differs with regard to the evidence in relation to individual complainants and the manner in which the complaint was pursued by MANDATE. In this regard I note that MANDATE’s submission, which was not forthcoming for more than a year after the original referral, offered no evidence in relation to any of the individual complainants that they had either sought or were refused the night duty. The one complainant who attended the hearing did argue that she would have been interested in the night duty but that she was unaware of any notice in the main store and the shop steward who attended the hearing referred to another female member of staff who had expressed an interest in the night duty and who had been refused. Subsequent to the hearing MANDATE furnished statements from two more of the complainants to the effect that they were interested in the night work but were not afforded the opportunity to avail of it. The above evidence would, in my opinion, fall short of a standard necessary to demonstrate that all of the named complainants were adversely affected by the company’s policy as it is possible that some of the named complainants were neither available nor interested in night work  and I consider that the case referred to by the respondent in this regard is relevant i.e. Elaine Johnson and sixty five others and Tesco (ibid). Insofar as direct evidence or statements have been presented in relation to three of the named complainants, I will consider below whether the complainants have adducedprima facie evidence of discrimination within the meaning of Sections 2(a) and 2(c) of the 1977 Act.
   5. While the respondent has stated that a notice in relation to the availability of night duty was posted in the main shop, MANDATE has argued that there was no evidence that any such notice was posted and I would accept on balance, that the respondent made little or no effort to bring the possibility of night duty to the attention of the staff on checkout duty in the toy store. It is undisputed that they are all female and that the majority of those assigned night duty were males. However, as regards the allegation of direct discrimination within the meaning of Section 2(a), I note that a female member of staff who was attached to the cosmetics department of the main part of the store was assigned to the night duty and I am of the view that MANDATE has failed to adduce prima facie evidence that any of the individual named complainants were denied access to night duty because they were female.
   6. The second question to be addressed is whether or not the complainants were required to comply with an inessential requirement within the meaning of Section 2(c) in order to qualify for the night duty. The respondent has argued that only those staff with the relevant merchandising experience were selected for night duty and that the experienced checkout staff were needed on checkouts at what was clearly the busiest time in the working year. Having considered the evidence presented, I am of the view that MANDATE has adduced insufficient evidence to shift the burden of proof on this issue and that on the balance of probabilities, the respondent was justified in seeking the more experienced merchandising staff for the night duty while ensuring that experienced checkout operators were available during trading hours. This complaint dates back several years and I would be of the view that the respondent’s procedures at the time lacked transparency and for this reason could have given rise to concern. I note however that the respondent has since changed its practices in relation to the manner in which night duty is allocated.
      
6. DECISION
   
   1. On the basis of the foregoing, I find that Tesco Ireland d id not discriminate against the complainants on the ground of their gender in terms of Section 2(a) or Section 2(c) of the Employment Equality Act, 1977 and in contravention of Section 3 of that Act.

Raymund Walsh,
Equality Officer,
16 February, 2005

¹Fifteen Named Female Employees and Power Supermarkets, EE 23/1996,
²Verbatim v Duffy and Others, unreported, Kinlen J, High Court, 18 May, 1994,
³Elaine Johnson and sixty five others and Tesco, DEC-E-2001-024