DEC-E2005-003 Full Case Report

Swift -v- Tesco Ireland

1. DISPUTE
   
   1. The dispute concerns a complaint that Tesco Ireland (the respondent) discriminated against Ms Yvonne Swift (the complainant) within the meaning of Section 2(a) and in contravention of Section 3 of the Employment Equality Act, 1977 in the course of her employment at the respondent’s retail grocery shop.
      
2. BACKGROUND
   
   1. The complainant was employed as a shop assistant at the Prussia Street branch of Tesco Ireland which then traded as Quinnsworth. The complainant alleges that she was discriminated against because of her gender when she was refused a shorter working week prior to and following the birth of her baby.
   2. MANDATE referred a complaint to the Labour Court on 27th November, 1998. The Labour Court referred the complaint for investigation by an Equality Officer on 30th December, 1998 and the complaint was assigned to Raymund Walsh, Equality Officer, for investigation and recommendation. MANDATE furnished a submission on 24th May, 2000. 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. Citing successive changes within its Employees Relations department as the main reason for the delay, Tesco did not furnish a response submission until 31st May, 200 A hearing took place on 11th June, 200 Arising from the hearing further material was exchanged between the parties and correspondence ensued up until 18th October, 2004.
      
3. SUMMARY OF THE CLAIMANT’S CASE
   
   1. The complainant was employed since September 1994 as a part-time sales assistant at Quinnsworth, Prussia Street, Dublin where she worked 35 hours per week. MANDATE states that the complainant approached management in March, 1998 with a view to reducing her hours to a three day week as she was expecting her baby in August 1998 and was told “we’ll sort it out when you come back”. The complainant was due back from maternity leave on 5th October, 1998 and called to the store on 18th September, 1998 and requested a working week of 100 a.m. To 00 p.m. Monday to Wednesday. Management informed the complainant that the proposed working hours could not be accommodated and on 1st October, 1998 the complainant advised the respondent that she would not be resuming employment. She called to the store on 8th October, 1998 to collect her P45 form and was asked to write a letter of resignation which she did. She received her P45 in the post.
   2. MANDATE argues that the respondent’s refusal to accommodate the working hours requested by the complaint amounts to discriminatory treatment arising from the complainant’s gender and refers to recommendations of the European Council on Childcare with regard to the needs of working parents. MANDATE also refers to the European Court of Justice in Enderby v Frenchay Health Authority and Secretary of State for Health¹ with regard to its findings on indirect discrimination and suggests that the respondent’s insistence that the complainant be available for work on a near full-time basis without objective justification amounts to indirect discrimination. MANDATE then lists several examples of staff from various branches of Tesco, including five at the Prussia Street branch, who were facilitated with shorter working weeks at their own request. The staff listed are all female.
      
4. SUMMARY OF RESPONDENT’S CASE
   
   1. The respondent states that it is company policy to facilitate both male and female employees with changes to their working hours in line with its ‘flexible working policy’ although depending on business needs, it is not always possible to facilitate every request. The respondent included in its submission copies of its Flexible Working and Equal Opportunities policies. The company states that when the complainant commenced employment with the store she worked an average of 28 hours per week and that prior to going on maternity leave in July 1998 she requested additional hours in order to increase her earnings. This request was acceded to. The company states that about three weeks prior to her return from maternity leave the complainant requested a shorter working week of 15 hours. The company offered the complainant an 18 hour week i.e. the minimum weekly hours available to pr-rata employees however this was unacceptable to the complainant who indicated that she would take a period of unpaid leave. The complainant submitted an application to rejoin the company in 200 In her application she stated that she had previously worked with Tesco and had taken a career break to look after her child. The complainant resumed work with the company in October, 2001 on a pro-rata basis however she absented herself from work on 26th January, 2004, did not respond to correspondence from the company and was assumed to have resigned.
   2. Arising from the hearing the respondent furnished a statement from the then Personnel Manager at the time of the complaint reaffirming the respondent’s position as to how the complainant’s request for shorter hours was handled. The respondent also furnished copies of payroll records showing the hours worked by the complainant during 1997/1998.
      
5. CONCLUSIONS OF THE EQUALITY OFFICER
   
   1. The matter for consideration is whether or not the respondent discriminated against the complainant on the grounds of her gender in terms of Section 2(a) 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.
   2. The Labour Court found in NUI Galway v Burke² that each case regarding a request to work part-time must be considered on its merits and it appears from that determination that the main factor in deciding that such a case amounts to indirect discrimination is a finding that the employer did not reasonably consider the request to transfer to part-time work, or had no proper policy in place for dealing with requests to transfer to part-time work. These principles also follow from the approach in Weir v St Patrick's Hospital³, which was expressly approved by the Labour Court in NUI v Burke, and from Black v Tesco Ireland⁴.
   3. In the present case, it does not appear to me on the evidence that the complainant has established a prima facie case either that the respondent did not reasonably consider her request to work a 15 hour week, or that it had no proper policy to deal with such requests. On the contrary, it is clear from MANDATE’s own submission that Tesco routinely accommodates staff who wish to work shorter working weeks for family reasons where this can be facilitated. MANDATE providesprima facie evidence to this effect when it lists several examples, all of them female, of staff who have changed from full time to part time working. I am satisfied that when the respondent offered the complainant an 18 hour week i.e. 10 a.m. to 00 p.m. over three days it made a reasonable effort to accommodate the complainant’s request and in the circumstances it is not necessary for me to consider whether there was objective justification, unconnected with the complainant’s gender, for the company’s response.
   4. I note that MANDATE states that the complainant has suffered great distress and injury to feelings and was forced to resign from her employment with Tesco as a result of the company’s discriminatory treatment. The respondent however furnished a more recent job application from the complainant and in the section headed ‘Your Thoughts on Working With Us’ she states ‘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’. MANDATE challenged this evidence at the hearing and the complainant stated that she had no recollection of the words used but agreed when pressed that the writing ‘looked like’ her own. I have no reason to doubt that the application form produced by the respondent was written by the complainant and I consider that her poor recollection and attempt to disassociate herself from it has damaged her credibility in relation to her recollection of events associated with her request for a shorter working week. I am satisfied that the complainant has failed to adduce prima facie evidence of discrimination on the ground of her gender and the complaint is dismissed.
   5. I referred at above to additional material supplied by the respondent subsequent to the hearing and this gave rise to a further response from MANDATE. In view of my conclusion above however, I do not consider it necessary to refer further to that material here.
      
6. DECISION
   
   1. On the basis of the foregoing, I find that Tesco Ireland did not discriminate against the complainant on the ground of her gender in terms of Section 2(a) of the Employment Equality Act, 1977 and in contravention of Section 3 of that Act.

Raymund Walsh,
Equality Officer,
19 January, 2005

¹Enderby v Frenchay Health Authority and Secretary of State for Health ECJ Case C-127/92 27 October 1993,
²NUI Galway v Burke, Labour Court, DEE 027,
³Weir v St Patrick's Hospital, Equality Tribunal, DEC-E2001-011,
⁴Black v Tesco Ireland, Equality Tribunal DEC-E2002-003