Kelly
(represented by Garrett Fitzpatrick Solicitors)
-v-
Higgins (represented by Kent Carty Solicitors)
1. CLAIM
1.1 The case concerns a claim by Ms. Diane Kelly that Mr. Dermot Higgins, Dublin, directly discriminated against her on the grounds of gender, marital status and family status in terms of section 6(2)(a), (b) and (c) of the Employment Equality Acts 1998 and 2004 in contravention of section 8 of the Acts in relation to dismissal. I must also consider the complainant's claim that she was indirectly discriminated against within the meaning of sections 22 and 31 of the Acts contrary to section 8 of the Acts.
2. BACKGROUND
2.1 The complainant submits that she was dismissed from her employment following an absence from work when she needed to take care of her daughter. She alleges that she was discriminated against on the gender, marital status and family status grounds. The respondent submits that the complainant chose to dismiss herself from employment and he denies the allegation of discrimination.
2.2 The complainant referred a complaint under the Employment Equality Act 1998 to the Tribunal on 25 November 2004. On 1 March 2006, in accordance with her powers under section 75 of that Act, the Director delegated the case to Mary Rogerson, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. A submission was received from the complainant on 27 April 2006. A submission was received from the respondent on 9 June 2006. A joint hearing of the claim was held on 22 November 2006.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant submits that she was employed by the respondent on a permanent part-time basis Monday to Friday, 9am to 1pm. She submits that the respondent always commented on how happy he was with her work as she was very careful handling the cash and her balance at the end of the day was always correct.
3.2 The complainant submits that on Saturday, 18 September 2004, her daughter became very sick with a throat infection and impetigo. The complainant submits that she phoned the respondent on Sunday 19 September to inform him that she would not be able to attend work due to her daughter's sickness as her daughter would not be able to attend crèche. She submits that as she is a single parent, she had no choice but to stay at home with her daughter. She submits that he told her not to worry and that he would organise someone to cover for her and that it was not a problem. She submits that during that week she was in contact with her colleagues to let them know how her daughter was doing and she spoke to the respondent directly on the Thursday of that week and there seemed to be no problem.
3.3 The complainant submits that on Monday, 27 September 2004, she phoned the respondent at approximately 8am to let him know that her daughter had fully recovered and that she would be in at 9am. The respondent told her that there was no work for her until Thursday and he would see then how it went. On the advice of her solicitor, she phoned the respondent and explained that her solicitor had said that she was entitled to go back on the Monday with the same hours as she normally had. She submits that the respondent exploded on the phone and said that she did not have a leg to stand on and all he had that week was Thursday and Friday.
3.4 The complainant submits that she tried to explain that her daughter's crèche hours were 9-1.30 and that she had to give notice if she wanted to change the hours to full days and that it was very expensive. She submits that the respondent was not very understanding and was very abusive. The complainant told him how upset she was and he kept repeating that she did not have a leg to stand on. She submits that she put the phone down due to his behaviour. Her solicitor advised her to go to work on Thursday but the next day she received a letter informing her that she had been dismissed from her employment. The complainant then found out that the respondent had to sack her as he gave another person her job on the Friday before she was dismissed. Approximately, two weeks before her dismissal, the complainant asked the respondent to fill out a form for her as she was applying for a mortgage and he gave her an excellent reference and she therefore, found it very difficult to accept the change in manner towards her.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 The respondent submits that the complainant phoned him on 19 September 2004 to advise that she was unable to come to work as rostered. It was agreed that she would work all day on Thursday and Friday of the same week to ensure that she did not lose any pay. The respondent was advised that the complainant had arranged for someone else to mind her child on the Thursday and Friday. The respondent submits that the complainant failed to attend work on the Thursday or Friday and did not telephone or offer any excuse for failing to attend work, however, she attended at the post office on Friday to conduct personal business.
4.2 The respondent submits that on Monday, 27 September 2006, the complainant phoned the respondent at 8.15am to advise that she was coming into work that week. The respondent had already prepared his roster and the complainant's normal working days were not available due to her lack of contact but the complainant was in any case advised that she could attend work for a full day on the Thursday and Friday and at that stage, her hours for the following week could be arranged.
4.3 The respondent submits that the complainant phoned him some two hours later on the same day to state she had received legal advice to the effect that she was entitled to come in to work. The respondent responded that the advice was not correct and the complainant proceeded to scream down the phone and the telephone conversation was terminated. As a result of that telephone call, the respondent assumed the complainant was not returning to work and he paid her the statutory entitlements, i.e., one weeks notice and two weeks holiday pay.
4.4 The respondent rejects the complainant's allegation that he discriminated against the complainant as a woman and more particularly as a single woman raising a child. The respondent submits that he has an exemplary record on both counts and this can be evidenced by all his other staff.
4.5 The respondent submits that the complainant was employed by the respondent for thirteen weeks. During that time, she requested and was granted two weeks holiday with pay. At various other times, she requested time off at her own expense to pursue a career as a Beautician. Her requests were always granted. In addition, she requested three days sick leave and was accommodated. Her two days absence from work on 23 and 24 September 2004 would also have been accommodated. However, the complainant chose to dismiss herself from employment.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In this case, the complainant alleges that the respondent directly and indirectly discriminated against her on the gender, marital status and family status grounds in relation to her dismissal. Notwithstanding the complainant's claim of direct discrimination, I consider that the claim is more appropriately one of indirect discrimination as the complainant was not dismissed because of her gender, marital status and/or family status per se. I must therefore consider whether the respondent indirectly discriminated against the complainant on the gender, marital status and family status grounds in terms of section 6(2)(a), (b) and (c) of the Employment Equality Acts 1998 and 2004 within the meaning of sections 22 and 31 of the Act and in contravention of section 8 of the Acts. In making my Decision in this case, I have taken into account all of the evidence, both written and oral, submitted to me by the parties.
Discrimination on the various grounds
5.2 Section 6(1) of the Employment Equality Acts 1998 and 2004 provides that:
"..... discrimination shall be taken to occur where-
(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as "the discriminatory grounds"), ......."
Section 6(2) provides that as between any two persons, the discriminatory grounds are, inter alia:
(a) that one is a woman and the other is a man (in this Act referred to as the "gender ground"),
(b) that they are of different marital status (in this Act referred to as "the marital status ground"),
(c) that one has family status and the other does not (in this Act referred to as "the family status ground"),
5.3 The complainant in this case submits that when she wished to return to work on 27 September 2004 following a week's absence due to her daughter's illness, the roster whereby she worked mornings only had been changed and she was told that there was no work available for her until Thursday. The respondent disputes the complainant's version of events in relation to when she would be available and submits that as a result of the complainant not being able to work on the week beginning 19 September 2006, the person with whom she job shared was asked to work three full days on the Monday, Tuesday and Wednesday. He submits that the complainant by agreement was rostered on the Thursday and Friday of that week in order that she did not lose any pay. He submits that as the complainant failed to turn up for work on the Thursday and Friday and as there was no communication from her, he put the same roster in place the following week. He submitted that on Monday, 27 September 2006 when the complainant advised him that she was able to return to work, it was not possible to alter the roster at that stage. The complainant in her evidence at the hearing submitted that when she phoned initially in relation to her absence, she did not say how long she would be absent as she did not know and that her understanding was that she would let the respondent know during the week. The complainant stated that she spoke to the respondent twice on the week of her absence when she attended the post office on personal business. The respondent denies speaking with the complainant.
5.4 The complainant's evidence at the hearing was that she said that she would let the respondent know during the week when she would be available for work. However, she did not do so until 8am on Monday, 27 September 2004. I note that when the complainant was unable to attend work on the previous week, she contacted the respondent on Sunday, 19 September. It appears that subsequently after the complainant had spoken to her solicitor in relation to the change in the roster, she phoned the respondent and an argument ensued between the parties. The respondent submits that as a result of that particular telephone conversation, he assumed that the complainant would not be returning to work. He wrote to the complainant on 27 September 2004 stating "Further to the telephone conversation this morning 27th September 2004, you have left us with no choice but to dispense with your services." At the hearing, the respondent submitted in evidence that the complainant refused to work the roster he set out and it was not acceptable to her. He further submitted that due to her attitude and abuse, he assumed that she was not willing to work with him and that he requires respect from employees and he therefore, dismissed her.
5.5 At the hearing, the respondent clarified that he did not have a Disciplinary Policy. If the complainant was abusive following the change in roster, it would seem that the matter should be more appropriately addressed under a disciplinary process rather than dismissal. In any case, the complainant refused to work the revised roster and the exchange on foot of the refusal by the complainant led to her being dismissed. I will now proceed to look at the issue of the requirement to work the revised roster and the issue of indirect discrimination.
Indirect discrimination
5.6 Parts III and IV of the Employment Equality Acts 1998 and 2004, deal, inter alia, with indirect discrimination. For the purposes of the Act, a comparison may be made between two persons who differ in relation to their gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the Traveller community. The Employment Equality, 1998 as amended by the 2004 Act provides for the same definition of indirect discrimination in respect of all of the grounds - Section 31(1). It provides at section 22(1):
(a) Indirect discrimination occurs where an apparently neutral provision puts persons of a particular gender [marital status, family status etc.] at a particular disadvantage in respect of any matter other than remuneration compared with other employees of their employer.
(b) Where paragraph (a) applies, the employer shall be treated for the purposes of this Act as discriminating against each of the persons referred to ...., unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary."
Establishing a prima facie case of indirect discrimination
5.7 The Labour Court case of NBK Designs Ltd v. Marie Inoue (1) concerned a lone parent with a school going child. She worked mornings only Monday to Friday and another person carried out the same duties as the complainant in the afternoons. When the respondent decided to amalgamate the two part-time positions, the complainant was unable to accept the offer of a full time post by virtue of her childminding responsibilities and she was dismissed. In that case, the Court noted that the "question of whether an expert tribunal (such as the Court) can reach conclusions by relying on the knowledge and experience of its members, without any evidence being adduced on the point," had not been previously considered by the Court but had been considered by the UK and Northern Ireland Courts. The Labour Court quoted from Price v. Civil Service Commission (2) , Perera v. Civil Service Commission (3), (which was subsequently adopted in Clymo v. Wainsword London Borough Council (4) ) and Briggs v. North Eastern Education and Library Board. (5)
The Labour Court referred to an extract from the Perera case which was subsequently adopted in Clymo v Wainsword London Borough Council [1989] IRLR 241 which reads as follows:
"On the one hand, the burden is on the complainant to prove his case and, viewed in isolation, the statistics produced do not prove it. On the other hand it is most undesirable that, in all cases of indirect discrimination, elaborate statistical evidence should be required before the case can be found proved. The time and expense involved in preparing and proving statistical evidence can be enormous, as experience in the United States has demonstrated. It is not good policy to require such evidence to be put forward unless it is clear that there is an issue as to whether the requirements of Section 1(1)(b) are satisfied."
5.8 The Labour Court went on to hold in the Inoue case:
"It would be alien to the ethos of this Court to oblige parties to undertake the inconvenience and expense involved in producing elaborate statistical evidence to prove matters which are obvious to the members of this Court by drawing on their own knowledge and experience.
Whilst there are many cases in which the unequal effect of a provision can be seriously put in issue and the true position can only be established by elaborate statistical evidence, the Court is satisfied that this is not such a case."
In that case, the Labour Court accepted that it is the reality in modern society that mothers are more likely to fulfil the role of primary carer of children than are fathers. It stated "..., as a general proposition, women who have children and are single, separated, or divorced find it more difficult to work full-time than fathers who are single, separated or divorced or men who are not parents." In the circumstances of this case whereby the complainant was a single mother, I find that the change in the roster impacted more heavily on her as a primary carer and that it was prima facie indirectly discriminatory on the gender, marital status and family status grounds. However, a finding of indirect discrimination only arises if the provision cannot be objectively justified in terms of paragraph (c) of subsection 22(1) of the Employment Equality Acts 1998 and 2004.
Justification for the practice
5.9 The European Court of Justice has stated in relation to objective justification in a case concerning gender discrimination:
"It is necessary in that regard to ascertain, in the light of all the relevant factors and taking into account the possibility of achieving by other means the aims pursued by the provisions in question, whether such aims appear to be unrelated to any discrimination based on sex and whether those provisions as a means to the achievement of certain aims, are capable of advancing those aims (see, in that regard, Case C-167/97 Seymour- Smith and Perez [1999] ECR I-623, paragraph 72)." (6)
The onus of establishing objective justification rests with the respondent. I must now consider whether the respondent can rebut the complainant's claim of discrimination and show that the operation of the change in the roster is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary in accordance with section 22 of the Employment Equality Acts1998 and 2004.
5.10 The respondent did not have clear written procedures in relation to absences from work. The respondent's aim in changing the roster was to have cover for the complainant in her absence and ensure that his business ran efficiently. I must consider whether the means of achieving that aim were appropriate and necessary. At the hearing, the respondent submitted that where he needs to prepare a roster as a result of someone being unavailable, he does so by Friday at the latest. I accept that the respondent must in terms of operating his business have appropriate cover for the various positions. I must now proceed to consider whether the means chosen to do that were appropriate and necessary. In relation to issue of the means chosen being "appropriate", in the Inoue case, the Labour Court considered that "This aspect of the test requires the means chosen be proportionate to the objective which they are intended to achieve." In that case, the Labour Court held that "the value of the benefit which accrued to the employer, when balanced against the discriminatory effect of the method by which it was achieved, could not satisfy the requirement of proportionality."
5.11 In relation to the question of the means chosen being "necessary", the Labour Court in the same case stated that "The requirement here is for the employer to demonstrate that there were no alternative means, having a less discriminatory effect, by which the objective in view could have been achieved." In that case the Labour Court considered that the respondent "gave no consideration to alternative ways of improving efficiency at the office...... The respondent could have discussed whatever difficulties there were with the complainant and her colleague and invited their suggestions as to a solution. ..... The Court is satisfied that the respondents gave no consideration to any other option by which their dissatisfaction with the job sharing arrangement could have been addressed. It cannot therefore be said that there were not alternative less discriminatory means by which the respondent's objective of improving efficiency could have been achieved."
In that case, the Court went on to find that the complainant was indirectly discriminated against on the gender ground and by reference to her family status and marital status.
5.12 Whilst I am satisfied that the respondent had a legitimate aim in seeking to ensure the smooth operation of his business, I am not satisfied than the benefit which accrued to him when balanced with the discriminatory effect of the method by which it was achieved could satisfy the requirement of proportionality. In relation to whether there was an alternative means by which the objective could have been achieved, there is no evidence that the respondent gave consideration to alternative means by which he could have had cover for staff and ensured the smooth operation of his business. The respondent did not have written absence notification procedures in place and there is also no evidence that the respondent discussed his difficulties with the complainant or tried to contact her to discuss such matters. The respondent's sole action was to unilaterally change the roster and when the complainant did not accept the changes, the respondent dismissed her. Accordingly, I am satisfied that the revised roster was not appropriate and necessary and cannot be justified by objective factors unrelated to the complainant's gender, marital status or family status.
5.13 The complainant also claims that the provision also discriminated against her on the marital status ground and family status grounds. Section 31(5) of the Act, as amended provides that if an employer is regarded as indirectly discriminating against an individual on the marital status ground or the family status ground and is also regarded as discriminating on the gender ground, the employer shall be regarded as indirectly discriminating on the gender ground only. Accordingly and in accordance with the Labour Court decision in Inoue wherein it considered section 31(5) of the 1998 Act, I find that the claim falls within the scope of the gender ground only.
6. DECISION
6.1 On the basis of the foregoing, I find that the respondent indirectly discriminated against the complainant on the gender ground in terms of section 22(1) of the Employment Equality Acts 1998 and 2004 contrary to section 8 of the Acts in relation to her dismissal.
6.2 I hereby order that the respondent:
(i) pay to the complainant the sum of €2,000.00 in respect of economic loss;
(ii) pay to the complainant the sum of €5,000.00 compensation for the effects of the act of discrimination (This award relates to compensation for distress and breach of rights under the 1998 Act and does not contain any element of lost income);
__________________
Mary Rogerson
Equality Officer
19 January 2007
notes
(1) ED/02/34 Determination No. 0212 25 November 2002
(2) [1977] IRLR 291
(3) [1982] IRLR 147
(4) [1989] IRLR 241
(5) [1990] IRLR 181t6
(6) Helga Kutz-Bauer v. Freie und Hansestadt Hamburg Case C-187/00 ECR 2003 Page I-02741 para 51