DEE062

The Facts

The material facts of the case are not in contention and can be briefly stated as follows:-
The Respondent operates a well-known chain of supermarkets. The Complainant commenced employment with the Respondent as a part-time sales assistant at its Celbridge Store in November 1989. Approximately one year later she commenced working full-time in the same capacity. At the times material to this case the Complainant worked on the customer service desk and also as a general sales assistant.

In or about December 1997 the Complainant went on maternity leave. Before commencing this leave she asked the Store Manager to facilitate her with part-time working on her return. The Manager told the Complainant that he would consider her request when she returned. The Complainant’s maternity leave terminated on 21st April 1998. She then took one weeks annual leave and returned to work on 11th May 1998.

The Complainant recalls having spoken to the Manager about her request for part-time work in February 1998. The Manager does not recollect this discussion. In the Court’s view nothing of substance turns on this difference of recollection. It is clear that in May 1998 the Complainant did speak to the Manager on this matter and renewed her request for part-time work so as to facilitate her in caring for her new baby.

The Manager indicated that he was unable to accede to her request over the summer because of staff shortages and holidays. He did, however, agree to allow the Complainant to have every Friday and every second Saturday off. This did not entirely meet the Complainant’s requirements and she raised the matter with her Union. The Union raised the matter with the Respondent by letter dated 15th July 1998. In that letter the Union claimed that the Respondent’s failure to allow the Complainant to work three days per week constituted unlawful discrimination. Further correspondence ensued between the Respondent and the Union, in which the Respondent again stated that it was unable to facilitate the Complainant with part-time work during the summer months. The Respondent did, however, agree to meet with the Union to discuss the matter.

In the interim the Manager approached the Complainant directly to discuss the matter further. As a result of these discussions an arrangement was agreed between the Complainant and the Manger whereby the Complainant would transfer to part-time work with effect from 28th September 1998.

The Position of the Parties.

The Complainant’s case

The Union contends that the Respondent discriminated against the Complainant on grounds of her gender in not allowing her to work part-time following her return to work after the birth of her child. It is not contended that an employer has an absolute duty to allow a woman to work part-time hours so as to facilitate her in child rearing. Rather, the Complainant’s claim of discrimination is predicated on the proposition that an employer should not unreasonably refuse to permit a woman, in the circumstances of the Complainant, to work part-time.

In support of this proposition the Union referred the Court to the decision of an Equality Officer in Decision DEC-E2002-003Black v Tesco Irelandand Determination number DEE 598,Theresa Hand v Minister for Justice. The Union also referred the Court to the Decision of the ECJ inRegina v Secretary of State for Employment, ex parte Nicole Seymour-Smith and Laura Perez.[1999] ECR 623, as authority for the proposition that a requirement in relation to employment which adversely affects more women than men is indirectly discriminatory. The Union submitted that a requirement to work full-time adversely affects more women than men.

The Respondent’s case.

The Respondent contended that it acted reasonably at all times in response to the Complainant’s request for part-time work. It submitted that at the time the Complainant returned to work the Respondent could not accommodated her request for part-time work due to staff holidays and staff shortages which limited its ability to replace her on the days that she wished to be off work. The Respondent contended that it did fully consider the Complainant’s request and that when the summer holiday period ended in September, the Complainant was facilitated with suitable part-time work.

Without prejudice to its contention in that regard, the Respondent denies that it had any duty under the Employment Equality Act 1977 to accede to allow a woman to work part-time on being requested to do so. In support of this submission the Respondent referred the Court to the decision of this Court to that effectin Burke v National University of Ireland Galway[2001] ELR 181 and inTesco v A Worker, which was upheld by the High Court on appeal and reported asThompson v Tesco14 ELR 23.

The Law.

The Complainant contends that by requiring her to work full time the Respondent indirectly discriminated against her. For the purpose of the Act of 1977 indirect discrimination is defined by Section 2 (c) as arising where: -

• [B]ecause 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.

Conclusion

The Court first considered if the Respondent did act reasonably in relation to the Complainant, as alleged. The Court is satisfied that when the Complainant first requested part-time work the Respondent did consider the request but came to the conclusion that due to the exigencies of the business it was not possible to accommodate her request at that time. The Respondent, through the Manager did, however, make a reasonable offer to allow the Complainant a degree of regularity in her attendance pattern. Later, when circumstances permitted, the Manager acceded to the Complainants request and agreed to allow her to work part-time on days which she found acceptable.

The Court is satisfied that by any standard the Respondent did act reasonably in relation to the Complainant and that it did accommodate her in her child minding responsibilities as best it could having regard to the needs of the business. Since the Complainants case is grounded on an assertion that the Respondent acted unreasonably, and as the Court has concluded that there was no element of unreasonableness in the manner in which her request was handled by the Respondent, it follows that her claim cannot succeed.

In these circumstances the Court considers it unnecessary to consider whether or to what extent Section 2 (c ) of the Act entitles a woman in the circumstances of the Complainant to insist on a facility to work part-time.

Determination

The Complainant has failed to establish any basis upon which it could be held that she was discriminated against on ground of her gender. The appeal is disallowed and the Recommendation of the Equality Officer is affirmed.



Signed on behalf of the Labour Court



Kevin Duffy
10th August, 2006______________________
MG.Chairman



NOTE

Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.